A. L. v. Walt Disney Parks and Resorts US, Inc.

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-12720
____________________
A. L., by and through D.L.,
as Next Friend, Parent, and Natural Guardian,
Plaintiff-Appellant,
D.L.,
individually, et al.,
Plaintiffs,
versus
WALT DISNEY PARKS AND RESORTS U.S., INC.,
Defendant-Appellee.
____________________
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Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:14-cv-01544-ACC-GJK
____________________
Before WILLIAM PRYOR, Chief Judge, LAGOA, Circuit Judge, and
WATKINS,* District Judge.
LAGOA, Circuit Judge:
This case returns to us after we affirmed in part and reversed
in part the district court’s grant of summary judgment in favor of
Walt Disney Parks and Resorts U.S., Inc., on A.L.’s—and other
plaintiffs’—claims that Disney violated Title III of the Americans
with Disabilities Act of 1990. See A.L. ex rel. D.L. v. Walt Disney
Parks & Resorts US, Inc. (A.L. I), 900 F.3d 1270, 1296, 1300 (11th
Cir. 2018). Given the thorough, exhaustive opinion written by the
previous panel, we assume the readers’ familiarity with the factual
basis underlying this case. A.L.’s case is one of over forty actions
filed by plaintiffs with disabilities against Disney in Florida and Cal-
ifornia federal courts, asserting that Disney failed to accommodate
their requested modifications to its disability-accommodation pro-
gram in violation of 42 U.S.C. § 12182(b)(2)(A)(ii).
*Honorable W. Keith Watkins, United States District Judge for the Middle
District of Alabama, sitting by designation.
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Following a bench trial after our remand, the district court
entered final judgment in favor of Disney after determining that
A.L.’s requested modification to receive either ten “Re-admission
Passes” for each person in his party or unlimited access to Disney’s
expedited “FastPass” lines for its theme park attractions was nei-
ther necessary to accommodate A.L.’s disability nor reasonable un-
der the Americans with Disabilities Act of 1990 (the “ADA”). The
district court further determined that the requested modification
would fundamentally alter Disney’s business model. On appeal,
A.L. contends that these determinations were clear error and that
the district court applied the wrong legal test in its fundamental-
alteration inquiry. A.L. also challenges various evidentiary rulings.
After thoroughly reviewing the record and with the benefit of oral
argument, we discern no clear error in the district court’s factual
findings, no legal error in its fundamental-alteration analysis, and
no abuse of discretion in its evidentiary rulings. We thus affirm the
district court’s judgment.
I. FACTUAL AND PROCEDURAL HISTORY
A. A.L.
A.L. is an adult male diagnosed with autism. A.L. is in his
late twenties, but his developmental age is “five-to-seven years
old.” A.L. is “extremely limited” in his ability to communicate with
other people; he uses one-word utterances to respond to others and
does not engage in full, two-way conversations. He cannot prepare
his own meals, dress himself, nor care for his own hygiene. While
A.L. cannot tell time based on a clock nor understand days of the
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week, he has some concept of time, e.g., comprehending that “to-
morrow” means some time in the future. Thus, A.L. is generally
in the care of his mother, D.L., and they both reside in Orange
County, Florida, with other family members.
Routine is critical for A.L. D.L. “manipulates the environ-
ment in order for [A.L.] to get to a point where he is a participating
member of society.” A.L. is extraordinarily regimented in his daily
schedule. He eats the same foods for every meal, and if offered
other food, he will refuse it. A.L. also eats at precisely the same
time every day without exception. He is given thirty minutes of
cell phone time between 9:30 p.m. and 10:00 p.m., and once the
time runs out, he knows it is time to go to sleep. If his routines are
disrupted, A.L. becomes anxious and gradually gets louder with au-
dible noises, and if D.L. cannot deescalate A.L.’s anxiety such that
he becomes overwhelmed, his behavior leads to “meltdowns,”
with A.L. becoming non-responsive. Additionally, A.L. has gone
on many family vacations, including twenty-one cruises and car
rides as long as seven hours (with breaks).
A.L. has received behavioral support services for his au-
tism—designed to modify and reduce his “maladaptive behav-
iors”—since he was four years old. As part of the therapy with his
support specialist, A.L. has worked on altering his need for extreme
rigidity and routine, as well as learning to “tolerate waiting” for
things. Through this therapy, he has learned enough patience to
tolerate waiting up to fifteen to twenty minutes for things, which
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is up from a former “target wait time” of thirty seconds back in
2008.
B. Disney’s General Programs for All Visitors
Each day, tens of thousands of visitors experience Disney’s
world-famous theme parks. A.L. I, 900 F.3d at 1274. While guests
at these parks can experience shows, parades, and concerts without
waiting in line, in order to experience the rides and some other at-
tractions at the parks, visitors will stand in lines—called Stand-By
lines—for some attractions and wait until they are at the front of
the line to enter the ride; sometimes, the wait times can extend for
over an hour. Id. at 1275. Over time, Disney has tried to remedy
this problem by creating different programs to reduce standby wait
time—namely, the FastPass system and Re-admission (“Re-ad”)
Passes. See id. at 1275–76. The FastPass system is available to all
guests. Id. at 1275. Most attractions have both the Stand-By line
and the FastPass line. As we explained in A.L. I:
Disney’s present version of FastPass is the
FastPass+ system. With FastPass+, a guest can make
advance reservations for up to three rides for each day
of his visit. A guest might reserve one ride at 10:00
a.m., one at 1:30 p.m., and one at 4:00 p.m. At each
of those reserved times—or within an “arrival win-
dow” around the reserved time—the guest can go to
the ride and board through the express FastPass line,
which typically involves a wait of no more than 5 to
10 minutes. This eliminates the need to stand physi-
cally in a line for those three rides.
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FastPass+ reservations are available on a first-
come, first-served basis. FastPass+ reservation times
are part of each ride’s capacity inventory. Once ca-
pacity is reached for the ride, no more FastPass+ res-
ervations for that ride are granted for that day. All
guests who have purchased an admission ticket to a
theme park can make their FastPass+ selections up to
30 days in advance. If a guest is staying at a Disney
Resort hotel, the guest can make his FastPass+ selec-
tions up to 60 days prior to check-in.
Id. at 1275–76.
On the other hand, Re-ad Passes are “instant access passes”
that allow guests “to access immediately a ride by going to the
short FastPass line.” Id. at 1276. Re-ad Passes are essentially “an
ameliorative tool” that Disney offers guests, whether disabled or
not, who have had a negative or an unpleasant experience. Id. “A
guest can use a Re-ad Pass at any time and for any ride, whereas a
FastPass reservation is for a specific ride at a set time and must be
used within an hour of that time.” Id.
C. Disney’s Programs for Accommodating Visitors with Disa-
bilities
Unlike the FastPass system, which is available to all visitors,
the Guest Assistance Card (“GAC”) system was Disney’s primary
accommodation for visitors with disabilities and their families. Id.
at 1298. Until October 2013, the GAC system provided a disabled
guest and his group with unlimited, repeated, and on-demand ac-
cess to rides and attractions. Id.
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Disney, however, determined that the GAC system proved
unmanageable, fraught with widespread abuse and fraud. It be-
came an unlimited front-of-the-line pass for anyone requesting it
because Disney could not ask a visitor for proof of disability. In
fact, the GAC system became a media sensation for all of the wrong
reasons. For example, parents with the financial means would pay
disabled tour guides to lead them through Disney parks so they
could skip long lines. According to a study of five of the most pop-
ular attractions conducted by Disney’s Industrial Engineering
team, the GAC system usage was “much higher” than the number
of GAC passes issued. The study concluded that the GAC system
was unintentionally providing a small minority of visitors multiple
opportunities to experience a given ride while denying non-GAC
visitors the chance to experience a given ride even once. This study
prompted Disney to consider and implement changes to the GAC
system.
In October 2013, Disney replaced the GAC system with the
Disability Access Service (“DAS”) program. Id. at 1276. The DAS
program does not require guests physically to stand in line. Id. at
1277. DAS cardholders can wait in a specific attraction’s line “vir-
tually” while being elsewhere in the park. DAS cardholders are
given a “return time,” and upon returning at their “return time,”
DAS visitors enter the FastPass line, which typically involves a wait
of no more than five to ten minutes. Id. at 1275–77. They can use
DAS to go on rides with shorter wait times while they wait virtu-
ally for the return time on a ride with a longer wait time. Id. at
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1277. Moreover, with a DAS card, DAS visitors’ return time ap-
pointments are good until the end of day, meaning that the guest
may return to ride the attraction at any point following the sched-
uled return time. Id. And if the total wait time posted at the at-
traction is fifteen minutes or less, DAS visitors are typically given
access immediately. Id. at 1278. A DAS visitor may hold only one
return time at any given time.
In addition to DAS, Disney offers a variety of other individ-
ualized services to assist guests with cognitive disabilities including
autism, such as itinerary planning to maximize their experience
and minimize waiting and a planning guide that provides specific
strategies to use when visiting the park. According to Disney’s ex-
pert witness, an expert in autism and pediatric neuropsychology,
these strategies for DAS families mirror the strategies that clinicians
use to treat individuals with autism.
D. A.L.’s December 2013 Visit to Magic Kingdom
A.L., D.L., a behavioral specialist for A.L., and several other
family members and friends visited Disney’s Magic Kingdom on
December 19, 2013. Id. at 1283. This was A.L.’s first visit to the
park since the DAS system was introduced. Upon entering the
park, they visited Guest Relations, where they received a DAS Card
and twenty-four total Re-ad Passes (four per person in the group).
Id.
A.L. has a list of nineteen attractions he prefers to ride or
experience at the Magic Kingdom, although he does not always
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choose to go to every attraction on the list. During this visit, A.L.’s
first ride of choice was Jungle Cruise (the second attraction on his
list), which, after using the DAS Card, had a “return time” of forty-
five minutes. Id. The family agreed that this was too long of a wait
for A.L., so they each used one of their respective Re-ad Passes to
board the ride immediately. Id. Then, A.L.’s “family determined
that with only three Re-ad Passes remaining per person, it would
not be possible to visit all of A.L.’s regular rides in order without
some waiting, and that they would need to leave the park.” Id. at
1283–84. As a result of this decision, the family skipped the other
seventeen attractions on A.L.’s list.
E. A.L. I
The DAS program has proven to be unpopular among some
of Disney’s fans with disabilities. In early 2014, plaintiffs began fil-
ing lawsuits—forty-four in total—challenging the DAS program on
the basis that it violated Title III of the ADA, see 42 U.S.C.
§ 12182(b)(2)(A)(ii), because it did not allow visitors with disabili-
ties to go on rides without waiting and in the order they wanted,
A.L. I, 900 F.3d at 1288. The plaintiffs filed their cases in either the
Central District of California or the Middle District of Florida; the
cases filed in California eventually were transferred to the Middle
District of Florida. Id. A.L.’s case was the first of these cases to be
filed. Id. A.L. sought a permanent injunction requiring that he be
permitted unlimited access to Disney’s attractions via the FastPass
lines or similar relief through at least ten Re-ad Passes. He also
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brought a claim for breach of contract and other garden-variety
common-law claims.1
Following discovery, the parties cross-moved for summary
judgment, and the district court granted Disney summary judg-
ment and entered judgment in its favor. The district court found
A.L. (and the other plaintiffs) could not make the required showing
that his requested modifications were “necessary” to afford him
“equal access” to the benefits of Disney’s attractions because:
(1) Disney provided plaintiffs an opportunity to gain
a like benefit from its parks that is enjoyed by non-
disabled individuals; (2) plaintiffs can all wait in a car
or a plane to get to Disney’s parks, and therefore
plaintiffs can wait virtually with a DAS Card to access
rides at scheduled times; and (3) DAS is an existing
means to equal access. In those cases where the issue
was contested, the district court also concluded that
plaintiffs “can deviate from [their] preordained
route[s].”
Id. at 1288–89 (alterations in original). A.L. appealed. Id. at 1289.
Soon after, the district court entered substantially the same order
in the thirty-seven related cases pending before it. Id. at 1288–89.
Twenty-nine of those plaintiffs appealed, and this Court consoli-
dated them with A.L.’s appeal. Id. at 1289.
1The district court dismissed these claims, and A.L. did not appeal those dis-
missals.
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A panel of this Court affirmed in part and reversed in part,
holding that although the DAS Card was “a significant benefit” for
Disney’s visitors with disabilities, there existed genuine disputes of
material fact on whether certain “behavioral features” of autism
made A.L.’s requested modification “necessary” to prevent melt-
downs and thus to afford him an “equal experience” at Disney’s
parks. Id. at 1296–97, 1300.
F. Relevant Procedural Issues After Remand
On remand, the district court issued an order reopening the
case, 2 including reopening several substantive Daubert motions
and motions in limine that had been closed before the appeal in
A.L. I. The district court then set the case for trial on February 18,
2020.
In November 2019, the district court ruled on the motions
in limine. The district court granted Disney’s motion to bar A.L.
from presenting evidence such as internal communications to ar-
gue “generally” that Disney intentionally discriminated against au-
tistic individuals and their families because Disney purportedly
knew that DAS would not accommodate persons like A.L. The
district court reasoned that this evidence would not relate to A.L.’s
individualized experiences. The district court also ordered the par-
ties to file an amended joint pretrial statement and witness and
2 In doing so, the district court denied A.L.’s motion to stay the action pending
the trial of similar actions in another district.
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exhibit lists consistent with its rulings but did not grant leave for
the parties to add additional witnesses or exhibits. The parties did
so two weeks later.
A.L., however, expanded his exhibit and witness lists to in-
clude allegedly “new” information and three witnesses who had
become known or involved in the case during the prior three
years—an expert witness, Dr. Lila Kimel, as well as two Disney em-
ployees. The district court struck A.L.’s filings, noting that A.L.
had also failed to delete exhibits it had ruled would be excluded or
reduce the number of listed witnesses, and ordered his counsel to
show cause why he should not be sanctioned for filing them. In a
response, A.L.’s counsel explained that he had no reason to believe
the district court would have “expedited” trial on remand and set
the matter for trial before the pending California trials of similar
cases. Counsel also argued that he was unaware of any order or
rule barring the addition of new witnesses and exhibits after a re-
mand from this Court and that “logic would not support or infer
that the addition of new witnesses should be implicitly barred.”
Counsel also stated that, in not removing the exhibits, he merely
intended to create “the best possible record of the case.” The dis-
trict court never ruled on the show-cause issue.
On February 6, 2020—twelve days before trial—A.L. no-
ticed Dr. Ananthi Rathinam, a neurologist, for deposition. The
purpose of the deposition was to memorialize the doctor’s trial tes-
timony, as A.L. had learned that Dr. Rathinam was unavailable to
attend trial. A.L. noticed the deposition for February 12, 2020—
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just six days before the commencement of trial. Disney moved to
strike the deposition notice, and the magistrate judge granted Dis-
ney’s motion. A.L. did not serve and file an objection to the mag-
istrate judge’s order.
Less than nineteen hours before trial, A.L.’s counsel notified
Disney that Dr. Rathinam would be “out of state” for the rest of
the week and that counsel was considering “ask[ing] Judge Conway
for leave to re-schedule [Dr. Rathinam] for an evening telephone
deposition during trial, probably tomorrow night.” At the same
time, A.L.’s counsel notified Disney that he intended not to call his
expert witness Dr. Joette James at trial and would instead introduce
deposition designations that had not previously been provided.
Disney moved to prohibit A.L. from taking Dr. Rathinam’s deposi-
tion on the first night of trial and to prohibit A.L. for introducing at
trial deposition designations of Dr. James. The district court
granted Disney’s motion.
G. Bench Trial and the District Court’s Judgment
The case proceeded to a bench trial on February 18, 2020.
Following a three-day trial, the district court entered an exhaustive
memorandum decision and order. The district court found that
A.L.’s requested modification of unlimited access to Disney’s
theme park attractions—via Disney’s expedited FastPass lines or
through at least ten readmission passes for each person in his
party—was neither necessary nor a reasonable accommodation.
As to whether the proposed modification was necessary, the dis-
trict court found that access for A.L. using the DAS Card and
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FastPass, without further modification, was a “like experience” to
that of non-disabled guests. Reviewing the evidence, the district
court found that A.L. had “some concept of time, can defer gratifi-
cation, and can wait ‘virtually’ for a ride because he can be success-
fully redirected to another activity while waiting for the ride return
time on the DAS card.” The district court explained that, because
the DAS system allowed “disabled guests to access the most popu-
lar attractions in the park with less wait time than the standby line,
those guests can see more attractions than a non-DAS guest could
experience because some of the wait time throughout the day has
been eliminated.” The district court noted that Disney’s evidence
at trial showed A.L. could have visited all nineteen attractions on
his list during the December 19 visit with the passes provided to
A.L.’s party—“a significantly higher number of rides than a typical
nondisabled guest experiences in a day.” And the district court
noted that D.L. had not done any preplanning to prepare A.L. for
the change from the GAC system to the DAS Card. Thus, the dis-
trict court found that the DAS card provided A.L. with a “‘like,’ if
not better, experience and equal enjoyment than nondisabled
guests experience.”
As to reasonableness, the district court explained the accom-
modation would “lengthen the wait times for all other riders, se-
verely impacting the remaining non-DAS users,” and “potentially
lead to the same fraud and overuse that existed with the GAC sys-
tem, which required a complete overhaul.” The district court also
noted that “[t]he word spreading on social media that one disabled
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individual received an accommodation of ten readmission passes
will increase the demand to be treated similarly by every disabled
individual once they find out, as well as those willing to misrepre-
sent they are disabled,” leading to the same issues plaguing the
GAC system. (Emphasis omitted). But even if the requested mod-
ification were necessary and reasonable, the district court deter-
mined that Disney was not required to accommodate A.L. with the
request because, based on Disney’s uncontroverted industrial engi-
neering studies and its expert’s opinion, it would fundamentally al-
ter Disney’s services to its other visitors, e.g., by increasing wait
times for most other guests without DAS, which in turn would dra-
matically reduce guest satisfaction levels.
The district court thus entered judgment for Disney, and
A.L. timely filed this appeal.
II. STANDARDS OF REVIEW
In an appeal from a bench trial, we review the district court’s
conclusions of law de novo and its factual findings for clear error.
Tartell v. S. Fla. Sinus and Allergy Ctr., Inc., 790 F.3d 1253, 1257
(11th Cir. 2015). “Clear error is a highly deferential standard of re-
view.” Bellitto v. Snipes, 935 F.3d 1192, 1197 (11th Cir. 2019) (quot-
ing Holton v. City of Thomasville Sch. Dist., 425 F.3d 1325, 1350
(11th Cir. 2005)). Findings of fact are clearly erroneous when, after
viewing all the evidence, we are “left with the definite and firm
conviction that a mistake has been committed.” Id. at 1197 (quot-
ing Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985)).
“In applying the clearly erroneous standard to the findings of a
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district court sitting without a jury, appellate courts must con-
stantly have in mind that their function is not to decide factual is-
sues de novo.” Anderson, 470 U.S. at 573 (quoting Zenith Radio
Corp. v. Hazeltine Rsch., Inc., 395 U.S. 100, 123 (1969)).
“We review evidentiary rulings only for an abuse of discre-
tion.” Sowers v. R.J. Reynolds Tobacco Co., 975 F.3d 1112, 1122
(11th Cir. 2020). “A district court abuses its discretion if it ‘applies
an incorrect legal standard, applies the law in an unreasonable or
incorrect manner, follows improper procedures in making a deter-
mination, or makes findings of fact that are clearly erroneous.’” Id.(quoting Aycock v. R.J. Reynolds Tobacco Co., 769 F.3d 1063, 1068
(11th Cir. 2014)). “We will not overturn an evidentiary ruling un-
less the moving party proves a substantial prejudicial effect.” Gou-
lah v. Ford Motor Co., 118 F.3d 1478, 1483 (11th Cir. 1997)
III. ANALYSIS
On appeal, A.L. makes several arguments. His first two ar-
guments concern legal and sufficiency-of-the-evidence challenges
to the district court’s verdict for Disney. First, he argues that the
district court erred in finding his requested modifications would
“fundamentally alter” Disney’s business model. Second, he con-
tends that the district court erred in finding the modifications were
neither necessary nor reasonable. A.L.’s final argument challenges
several of the district court’s evidentiary and discretionary rulings.
We first discuss the general law as it pertains to Title III of the ADA
before turning to A.L.’s arguments.
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A. Title III of the ADA
“Congress enacted the ADA in 1990 to remedy widespread
discrimination against disabled individuals,” PGA Tour, Inc. v.
Martin, 532 U.S. 661, 674 (2001), by providing “clear, strong, con-
sistent, enforceable standards” addressing that discrimination,
42 U.S.C. § 12101(b)(2). Title III of the ADA prohibits any “place
of public accommodation” from discriminating against disabled in-
dividuals with regards to “the full and equal enjoyment of the
goods, services, facilities, privileges, advantages, or accommoda-
tions.” Id. § 12182(a); see also id. § 12181(7)(I) (defining places of
“public accommodation” to include “a park, zoo, amusement park,
or other place of recreation”). Title III defines “discrimination” as,
among other things:
a failure to make reasonable modifications in policies,
practices, or procedures, when such modifications are
necessary to afford such goods, services, facilities,
privileges, advantages, or accommodations to indi-
viduals with disabilities, unless the entity can demon-
strate that making such modifications would funda-
mentally alter the nature of such goods, services, fa-
cilities, privileges, advantages, or accommodations.
Id. § 12182(b)(2)(A)(ii) (emphasis added); accord A.L. I, 900 F.3d at
1292; see also Martin, 532 U.S. at 688 (“Title III of the [ADA] re-
quires without exception that any ‘policies, practices, or proce-
dures’ of a public accommodation be reasonably modified for disa-
bled ‘individuals’ as necessary to afford access unless doing so
would fundamentally alter what is offered.” (quoting
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§ 12182(b)(2)(A)(ii)). And a “plaintiff bears the burden of proving
not only that he is disabled but also that his requested modification
is both ‘reasonable’ and ‘necessary.’” A.L. I, 900 F.3d at 1292 (quot-
ing § 12182(b)(2)(A)(ii)).
Here, in entering judgment for Disney, the district court
made two determinative findings. First, the district court found
A.L.’s requested modifications were neither “necessary” nor “rea-
sonable” for him to realize the “full and equal enjoyment” of Dis-
ney’s services. Second, the district court found that A.L.’s re-
quested modifications, if offered by Disney, would “fundamentally
alter” Disney’s business model. A.L. contends that both findings
constituted clear error. We address each finding in turn.
B. Necessary and Reasonable
We first address the district court’s finding that A.L. failed to
prove the requisite elements of his Title III claim. In assessing
whether A.L.’s requested modification to the DAS program was
necessary under Title III of the ADA, we held in A.L. I that Disney
must afford A.L. “the opportunity to have something akin to or
similar to the experience” of non-disabled guests but Disney “was
not required to make the preferred accommodation of A.L.’s
choice.” 900 F.3d at 1296. Because places of public accommoda-
tions must “provide disabled patrons an experience comparable to
that of able-bodied patrons,” whether an accommodation sought
by a disabled person is “necessary” under § 12182(b)(2)(A)(ii) is de-
termined by considering first “how [the business’s] facilities are
used by nondisabled guests.” A.L. I, 900 F.3d at 1294, 1296 (first
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quoting Baughman v. Walt Disney World Co., 685 F.3d 1131, 1135
(9th Cir. 2012)). The analysis then turns to whether the business
has taken “reasonable steps to provide disabled guests with a ‘like
experience.’” Id. at 1296 (quoting Argenyi v. Creighton Univ., 703
F.3d 441, 449 (8th Cir. 2013)). “[F]acilities are not required to make
the preferred accommodation of plaintiffs’ choice. Facilities need
make only reasonable accommodations that are ‘necessary.’” Id.(citation omitted). Indeed, “[i]t is not enough to show that the [ac-
commodation] does not eliminate all discomfort or difficulty.” Id.In arguing that the district court correctly determined that
A.L.’s requested modification was not “necessary” under the ADA,
Disney cites Galvan v. Walt Disney Parks & Resorts U.S., Inc., 425
F. Supp. 3d 1234 (C.D. Cal. 2019)—decided after our decision in
A.L. I—where the district court rejected a substantially similar ar-
gument from a plaintiff with cerebral palsy who had knee surgery
shortly before the visit to Disney during which he alleged he had
been denied equal access. Id. at 1242. In Galvan, the district court
found that the plaintiff failed to show that “his request for priority
ride access [was] necessary under the ADA because he had access
to Disneyland comparable to able-bodied persons.” Id. at 1243.
The Galvan plaintiff had “expressly stated that he experienced the
same number of rides and spent the same amount of time at Dis-
neyland” with and without a DAS pass, indicating that the pass was
not necessary to provide him with park access. Id. (emphasis re-
moved). And there was no evidence that the plaintiff could not
access the park without a DAS pass, where Disney had offered him
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20 Opinion of the Court 20-12720
a wheelchair that he declined to use. Id. Even accounting for the
obvious differences between cerebral palsy and autism, we agree
with the reasoning behind the conclusion in Galvan that the plain-
tiff had not established an ADA violation.
Here, the district court found that A.L.’s requested modifi-
cation was not necessary under the ADA. Reviewing the record,
we conclude that the district court’s thorough findings on the issue
were not clearly erroneous, as they are supported by the record
evidence. For example, the district court, in determining that the
DAS card provided a like experience, found that “A.L. has some
concept of time, can defer gratification, and can wait ‘virtually’ for
a ride because he can be successfully redirected to another activ-
ity.” This finding was buttressed by D.L. herself testifying that A.L.
“can wait 15, 20 minutes in a line . . . and be successful” doing so.
Further, there was evidence at trial that A.L. has gone on many
family vacations, including twenty-one cruises, lasted up to seven
hours in car rides, and sat through Broadway shows that were up
to three hours in length. While these environments may differ
from the stimulus of a theme park, as we recognized in A.L. I, the
district court’s finding that A.L. can wait and be redirected even in
a theme park is supported by evidence in the record. 900 F.3d at
1297. The district court’s other findings on the likeness of the ex-
perience are also supported by evidence in the record, i.e., with the
DAS card, A.L. could have experienced all the rides on his list,
which were a significantly higher number than typical nondisabled
guests experience in a day at Magic Kingdom.
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20-12720 Opinion of the Court 21
Next, we turn to reasonableness—whether A.L.’s requested
modification was reasonable. As an initial matter, Disney contends
that A.L.’s initial brief is “devoid of any discussion” as to the district
court’s conclusion that his requested modification was not neces-
sary to provide him an experience akin to or like that of a non-dis-
abled guest. We agree. “When an appellant fails to challenge
properly on appeal one of the grounds on which the district court
based its judgment, he is deemed to have abandoned any challenge
of that ground, and it follows that the judgment is due to be af-
firmed.” Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680
(11th Cir. 2014) Because A.L.’s brief contains no discussion of the
district court’s reasonableness finding, we conclude that A.L. has
abandoned this issue on appeal. That abandonment is sufficient on
its own to affirm the district court’s judgment in favor of Disney.
Id.But even if we consider the merits of whether A.L.’s re-
quested modification was reasonable, we conclude that the district
court correctly determined that A.L.’s requested modification was
not reasonable. As the district court explained, A.L.’s requested
modification would “lengthen the wait times for all other riders,
severely impacting the remaining non-DAS users, . . . and poten-
tially lead to the same fraud and overuse that existed with the GAC
system, which required a complete overhaul to the current more-
controllable DAS system.” We determine that this finding is not
clearly erroneous, as it is supported by record evidence. Indeed,
two Disney representatives testified about the issues plaguing the
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22 Opinion of the Court 20-12720
GAC system. Disney “lost control over who got [GAC] passes”
because “it became increasingly knowledgeable to everyone that
you could go into guest relations and say that they needed the as-
sistance and acquire that assistance.” The system also led to “re-
petitive” and “excessive” use, i.e., “in an extreme way compared to
how guests without the passes experienced the park.” And people
“were impersonating Disney tour guides” or children with termi-
nal illnesses to take people on rides with fraudulently obtained
passes or selling the passes online—i.e., “a wide spectrum of
abuse.” Further, as the district court noted, based on an empirical
study of the GAC ridership, Disney’s engineers concluded that the
portion of the guest population holding GAC passes was consum-
ing a substantial portion of ride capacity. Moreover, a Disney rep-
resentative opined that a return to a pre-DAS system would be
equally or even more unsustainable given popular new rides.
And, as the district court explained, A.L.’s proposed modification
would be like returning to the unlimited access to FastPast lines
that occurred in the GAC system—a system that suffered from
fraud and abuse.
Accordingly, we conclude that the district court’s findings
that A.L.’s requested modification was neither necessary nor rea-
sonable to accommodate his disability were not clearly erroneous.
We therefore affirm the district court’s determination that A.L.
failed to state a claim under Title III of the ADA.
C. Fundamental Alteration
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20-12720 Opinion of the Court 23
A.L. further argues that the district court’s consideration of
any potential “fundamental alteration” to Disney’s business model
constituted error because the district court both applied the wrong
legal test and reached a conclusion unsupported by the evidence.
Both arguments fail.
First, A.L. argues that the district court “distort[ed] the lan-
guage of ADA” by evaluating whether Disney’s “business” or
“profitability” would be fundamentally altered. A.L. contends that
this was the wrong legal analysis because the ADA asks whether
the requested modifications would alter the “nature” of the goods
and services and the defendant’s business model is not properly
part of that inquiry. He focuses on the ADA’s use of the term “in-
dividual” and contends that “[r]ather than analyzing the impact of
A.L.’s requested modification on Disney’s services, the trial court
analyze[d] the impact of an unknown and hypothetical number of
disabled persons on Disney’s business plan.” He insists the focus
must be solely on the needs of “the individual”—the visitor with
disabilities—to the exclusion of all other considerations, including
the business. We disagree.
As stated above, Title III of the ADA defines “discrimina-
tion,” in relevant part, as:
a failure to make reasonable modifications in policies,
practices, or procedures, when such modifications are
necessary to afford such goods, services, facilities,
privileges, advantages, or accommodations to indi-
viduals with disabilities, unless the entity can
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24 Opinion of the Court 20-12720
demonstrate that making such modifications would
fundamentally alter the nature of such goods, ser-
vices, facilities, privileges, advantages, or accommo-
dations.
§ 12182(b)(2)(A)(ii) (emphasis added). The statute does not further
define a fundamental alteration to the nature of the entity’s ser-
vices, but Martin illustrates the proper analysis. 532 U.S. at 682–91.
There, the Supreme Court, in considering whether allowing an
amateur golfer to participate in the PGA Tour’s golf tournament
with a golf cart would fundamentally alter the tournament, empha-
sized the purpose of the walking rule from which Martin sought an
exemption. See id. at 690. The Court explained that the purpose
of the rule was to subject players to fatigue and that this purpose
would not be subverted by allowing Martin to use a cart. The dis-
trict court had found that Martin’s condition subjected him to
greater fatigue, even when using a cart, than his competitors expe-
rienced by walking. Id. The Court held that “[a] modification that
provides an exception to a peripheral tournament rule without im-
pairing its purpose cannot be said to ‘fundamentally alter’ the tour-
nament.” Id. at 690.
The district court here applied the correct legal test. It con-
sidered whether the requested modification would affect merely
peripheral aspects of Disney’s parks or aspects essential to Disney’s
services. The district court determined that the fundamental-in-
quiry analysis rested on fact questions, particularly whether and to
what degree A.L.’s requested modification would impact wait
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20-12720 Opinion of the Court 25
times for rides and to what extent wait times for rides are essential
to Disney’s services. The district court’s analysis is analogous to
the Supreme Court’s approach in Martin, in which the Court eval-
uated the relationship of the rule to the nature of the services of-
fered as well as the impact the requested modification would have
on the purpose served by the rule. See id. at 690–91. Likewise,
here, the district court considered the relevant rule and its purpose,
determined that the rule was not peripheral, and determined that
the requested accommodation would undermine the purpose of
the rule. A.L.’s criticism of the district court’s legal analysis
amounts to nothing more than an objection to the use of the phrase
“business model” when discussing the effects of the requested
modification on Disney’s services, but that is not a legal error.
A.L. also argues that the evidence did not support the district
court’s fundamental-alteration finding, but we discern no clear er-
ror. Disney, as the defendant, bore the burden of proof on the fun-
damental-alteration inquiry. See § 12182(b)(2)(A)(ii) (requiring that
“the entity” show a fundamental alteration to its services); see also
A.L. I, 900 F.3d at 1292. The district court found that Disney satis-
fied that burden by proving that the requested accommodation
would have to be offered to many more guests other than A.L. and
that the aggregate effect would fundamentally alter Disney’s ser-
vices. The district court determined that Disney had proved that
modifications to the DAS card would have to be uniformly applied
to all DAS guests. Next, the district court found that Disney’s un-
controverted evidence proved that the modification in the
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26 Opinion of the Court 20-12720
aggregate would increase wait time for the 96.7% of guests who do
not have DAS cards and would essentially be a return to the abuse-
ridden GAC system. Finally, the district court determined that the
evidence proved that the modification would interfere with non-
DAS guests’ ability to access Disney’s services—meaning that it
was not merely peripheral—and would decrease their satisfaction.
Therefore, the effect of the accommodation would be to “funda-
mentally alter” Disney’s park operations and business.
D. Evidentiary Rulings
Finally, A.L. challenges several of the district court’s eviden-
tiary rulings. A.L. contends the district court abused its discretion
by: (1) excluding the testimony of a neurologist, Dr. Ananthi Rathi-
nam; (2) excluding the testimony of A.L.’s expert on autism; (3)
admitting Disney’s expert report; and (4) excluding A.L. from pre-
senting evidence that Disney’s implementation of the DAS pro-
gram was a form of intentional discrimination.
First, A.L. argues that the magistrate judge’s refusal to allow
him to depose Dr. Rathinam “left [him] with no expert witness, ei-
ther live or by deposition.” But A.L. never served and filed an ob-
jection to the magistrate judge’s order. Federal Rule of Civil Pro-
cedure 72(a) provides that when a magistrate judge issues a written
order on “a pretrial matter not dispositive of a party’s claim or de-
fense,” the “party may serve and file objections to the order within
14 days after being served with a copy”; however, “a party may not
assign as error a defect in the order not timely objected to.” (Em-
phasis added). Thus, a party’s failure to file objections to a
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20-12720 Opinion of the Court 27
magistrate judge’s order in a non-dispositive matter to the district
court waives that claim on appeal to the circuit court. Because A.L.
filed no objection to the magistrate judge’s order, we cannot re-
view this issue. See Maynard v. Bd. of Regents of Div. of Univs. of
Fla. Dep’t of Educ. ex rel. Univ. of S. Fla., 342 F.3d 1281, 1286 (11th
Cir. 2003) (“Because he failed to timely challenge the magistrate's
non-dispositive orders before the district court, Maynard waived
his right to appeal those matters here.”).
A.L. also argues that the district court abused its discretion
in denying his request to depose Dr. Rathinam after trial began.
The decision whether to permit a deposition to be taken for use at
trial is left to the sound discretion of the trial court, “consider[ing]
all the circumstances, including fairness to the adverse party and
the amount of time remaining before the date set for trial.” Chrys-
ler Int’l Corp. v. Chemaly, 280 F.3d 1358, 1362 (11th Cir. 2002); cf.
Hill v. Homeward Residential, Inc., 799 F.3d 544, 553 (6th Cir.
2015) (affirming the denial of a trial deposition where “discovery
had long since closed when [plaintiff] made this request—only one
full business day before trial”). Here, the magistrate judge had al-
ready denied A.L.’s attempt to depose Dr. Rathinam and A.L. did
not appeal that ruling, as discussed above. The district court found
that A.L. failed to show “good cause” for not abiding by the magis-
trate judge’s ruling.
A.L.’s only argument is, again, that the district court left him
“with no expert witnesses.” Considering all the circumstances—
that discovery had long since been closed, that trial had
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28 Opinion of the Court 20-12720
commenced, and that Disney would be prejudiced by the short no-
tice to prepare for a full deposition while continuing its trial prepa-
rations—we conclude that the district court did not abuse its dis-
cretion in denying A.L.’s request to conduct a deposition of Dr.
Rathinam after trial began.
A.L. further argues the district court abused its discretion in
excluding his autism expert, Dr. Lila Kimel, and denying his re-
quest to have Dr. Kimel testify at trial, or, alternatively, to intro-
duce the deposition testimony of Dr. Joette James. The district
court denied these requests because A.L. was late in disclosing Dr.
Kimel and disclosed that Dr. James’s testimony would be presented
by deposition, instead of at trial, less than twenty-four hours before
the start of trial. We conclude that no abuse of discretion occurred
here. Federal Rule of Civil Procedure 16(b)(4) provides that “[a]
schedule may be modified only for good cause and with the judge’s
consent.” Moreover, the Middle District of Florida’s Local Rule
3.06 (2020)—in effect at the time of trial—provides that “[t]he pre-
trial statement and the pretrial order . . . control the course of the
trial and may not be amended except by order of the Court in the
furtherance of justice.” Here, the case management and schedul-
ing order required A.L. to disclose expert witnesses by June 10,
2015. A.L. failed to make the expert witness disclosure by the dis-
trict court’s deadline. Based on the record before us, the district
court did not abuse its discretion in controlling its own docket in a
case that was over seven years old and was starting trial in less than
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20-12720 Opinion of the Court 29
twenty-four hours. See Walter Int’l Prods., Inc. v. Salinas, 650 F.3d
1402, 1415–16 (11th Cir. 2011).
A.L. also argues the district court abused its discretion in
overruling his hearsay objection to Disney’s expert report and ad-
mitting it into evidence. A.L. did not challenge the expert witness’s
qualifications, and the witness was proffered as an expert without
objection by A.L. “We will not overturn an evidentiary ruling un-
less the moving party proves a substantial prejudicial effect.” Gou-
lah, 118 F.3d at 1483. Here, there was no “substantial prejudicial
effect” as to the admission of the expert report. In its order, the
district court cited extensively to the expert’s live trial testimony
rather than the expert report itself. And A.L.’s only argument as to
prejudice is that the “cumulative effect” of the district court’s evi-
dentiary rulings “was prejudicial in so far as the trial court expressly
deemed Defendant’s expert testimony to be unrebutted.” But that
does not explain how the admission of Disney’s expert report in
addition to Disney’s expert’s testimony prejudiced A.L. We there-
fore conclude that the district court did not abuse its discretion in
overruling A.L.’s objection to Disney’s expert report and admitting
it into evidence.
Finally, A.L. contends that the district court erred in exclud-
ing him from presenting evidence at trial relating to Disney’s im-
plementation of the DAS program as a form of intentional discrim-
ination, as he asserts that the evidence would have been used for
other reasons. We disagree. Federal Rule of Evidence 401 provides
that “[e]vidence is relevant if: (a) it has any tendency to make a fact
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30 Opinion of the Court 20-12720
more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.” As we
previously explained in A.L. I, A.L.’s complaint does not contain
“a cause of action for intentional or disparate-impact discrimina-
tion under the ADA.” 900 F.3d at 1300. And we conclude that the
other reasons A.L. offers for the presentation of this excluded evi-
dence—that the DAS program is “dysfunctional” and was created
to reduce the number of “ghost riders” and disabled “tour guides”
in Disney parks (i.e., to curb abuse)—are similarly neither relevant
nor probative of the individualized injunctive relief he seeks. And
the district court, in its order on Disney’s motion in limine, ex-
plained that “[t]o the extent A.L. intends to introduce evidence at
trial of Disney’s internal communications between Disney employ-
ees related directly to A.L.’s individual experience on December 19,
2013 or the ‘necessity’ of his proposed accommodation, such evi-
dence would be relevant and admissible, subject to the Federal
Rules of Evidence governing hearsay, authentication, etc.” A.L.
has not shown a “substantial prejudicial effect” from the exclusion
of this evidence, see Goulah, 118 F.3d at 1483, and we thus con-
clude that the district court did not abuse its discretion.
IV. CONCLUSION
For all these reasons, we affirm the district court’s judgment
in favor of Disney.
AFFIRMED.