Wong v. Regents Univ. of Ca

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANDREW H.K. WONG,  No. 01-17432

Plaintiff-Appellant, D.C. No.

v. CV-96-00965-

REGENTS OF THE UNIVERSITY OF LKK(DAD)

CALIFORNIA, ORDER

Defendant-Appellee. AMENDING

 OPINION AND

DENYING

PETITION FOR

REHEARING AND

PETITION FOR

REHEARING EN

BANC AND

AMENDED

 OPINION

Appeal from the United States District Court

for the Eastern District of California

Lawrence K. Karlton, Senior District Judge, Presiding

Argued and Submission Deferred February 12, 2003

Submitted April 17, 2003

San Francisco, California

Filed August 18, 2004

Amended June 7, 2005

Before: Robert R. Beezer, Sidney R. Thomas and

Richard R. Clifton, Circuit Judges.

Opinion by Judge Clifton;

Dissent by Judge Thomas

6427

6430 WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA

COUNSEL

Dan Siegel (argued), Hunter Pyle, Siegle & Yee, Oakland,

California, for the plaintiff-appellant.

Michael T. Lucey, Michael D. Bruno, Joel K. Liberson

(argued), Gordon & Rees LLP, San Francisco, California, for

the defendant-appellee.

ORDER

The majority opinion filed on August 18, 2004, is amended

as follows:

WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA 6431

At 379 F.3d at 1108, replace the first sentence of the para-

graph which begins “Regarding the activity of learning . . . ,”

with the following:

Regarding the activity of learning, Wong’s claim

to be “disabled” was contradicted by his ability to

achieve academic success, and to do so without spe-

cial accommodations.

At 379 F.3d at 1108-09, replace the paragraph which

begins on page 1108 and extends to the next page with the

following:

The relevant question for determining whether

Wong is “disabled” under the Acts was not whether

he might be able to prove to a trier of fact that his

learning impairment makes it impossible for him to

keep up with a rigorous medical school curriculum.

It was whether his impairment substantially limited

his ability to learn as a whole, for purposes of daily

living, as compared to most people. The level of aca-

demic success Wong achieved during the first two

years of medical school, without any special accom-

modation provided to him by the school, made that

proposition implausible. His record was to the con-

trary. Because the factual context made implausible

his contention that he was disabled in the activity of

“learning” as compared to most people, he was

required to “come forward with more persuasive evi-

dence than otherwise would be necessary to show

that there is a genuine issue for trial.” Blue Ridge

Insurance Co. v. Stanewich, 142 F.3d 1145, 1149

(9th Cir. 1998) (citing Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986)). He

did not present sufficient evidence in support of his

contention to establish a triable issue of fact.6

The next sentence, beginning “As for the activity of reading

. . . ,” starts a new paragraph (correctly shown at Slip op. at

6432 WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA

11562, but incorrect at 379 F.3d at 1109). That paragraph is

otherwise unchanged.

At 379 F.3d at 1109, delete the first paragraph of footnote

6 such that the footnote consists only of the remaining para-

graph.

The dissenting opinion of Judge Thomas is amended, on

379 F.3d at 1110, by deleting the sixth sentence of the first

paragraph, which is the sentence beginning with the words

“At a minimum, . . . .”

With the opinions as amended, Judges Beezer and Clifton

have voted to deny the petition for rehearing. Judge Thomas

has voted to grant the petition for rehearing.

Judge Clifton has voted to deny the petition for rehearing

en banc, and Judge Beezer so recommends. Judge Thomas

has voted to grant the petition for rehearing en banc.

A judge of the court called for a vote on the petition for

rehearing en banc. A vote was taken, and a majority of the

active judges of the court failed to vote for en banc rehearing.

Fed. R. App. P. 35(f).

The petition for rehearing and petition for rehearing en

banc, filed on September 8, 2004, are DENIED.

No further petitions for rehearing will be entertained.

OPINION

CLIFTON, Circuit Judge:

Andrew H.K. Wong alleges that the University of Califor-

nia discriminated against him in violation of the Americans

WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA 6433

with Disabilities Act (“ADA”) and the Rehabilitation Act1

when it denied his request for learning disability accommoda-

tions and subsequently dismissed him for failure to meet the

academic requirements of the medical school at the Universi-

ty’s Davis campus. The district court granted the University’s

motion for summary judgment, concluding that Wong failed

to present a triable issue of material fact as to whether he was

“disabled” and thus legally entitled to special accommoda-

tions under those Acts.

Wong’s appeal thus requires us to consider the meaning of

“disabled” under the Acts. More specifically, it presents a

question of whether a person who has achieved considerable

academic success, beyond the attainment of most people or of

the average person, can nonetheless be found to be “substan-

tially limited” in reading and learning, and thus be entitled to

claim the protections afforded under the Acts to a “disabled”

person.

This appeal also raises an issue regarding the exclusion of

testimony by the district court on the ground that the expert

witnesses in question were not timely identified. The district

court excluded certain experts retained by Wong to respond

to the University’s motion for summary judgment. Those wit-

nesses were identified by Wong after a deadline set by the

district court for identifying expert witnesses. Wong contends

that the tardy identification was justified because he could not

reasonably have anticipated the need for those witnesses,

since he did not know that the University disputed his claim

to be disabled under the Acts. He further contends that the late

identification was harmless, given that the case had a sched-

uled trial date several months after the supplemental, though

tardy, identification.

1

Because Title II of the ADA, 42 U.S.C. § 12132, and section 504 of

the Rehabilitation Act, 29 U.S.C. § 794, create the same rights and obliga-

tions, they will be referred to jointly here as “the Acts.” See Wong v.

Regents of the Univ. of California, 192 F.3d 807, 811 n.2 (9th Cir. 1999).

6434 WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA

We affirm. We conclude that the district court did not

abuse its discretion in declining to permit Wong to add the

additional witnesses. The need for those witnesses could rea-

sonably have been anticipated prior to the supplemental iden-

tification of witnesses. We also conclude that the evidence

before the district court did not establish a genuine issue of

material fact as to whether Wong qualified under the Acts as

disabled. Wong contends that he has an impairment which

“substantially limits [him in] one or more of the major life

activities” and thus fits within the definition of “disabled.”

See 42 U.S.C. § 12102(2)(A). The Supreme Court has con-

cluded, however, that “these terms need to be interpreted

strictly to create a demanding standard for qualifying as dis-

abled.” Toyota Motor Mfg. Kentucky, Inc. v. Williams, 534

U.S. 184, 197 (2002). Interpreting those terms strictly and

applying that demanding standard, Wong has not demon-

strated that he is substantially limited in major life activities.

We therefore affirm the district court’s judgment in favor of

the University.

I. BACKGROUND

This court previously considered Wong’s disability dis-

crimination claim in 1999, after the district court entered sum-

mary judgment in favor of the University on different

grounds. We reversed the district court’s order and remanded

for further proceedings, concluding that genuine issues of

material fact remained as to the reasonableness of the accom-

modation in question and as to whether Wong was otherwise

qualified to meet the medical school’s academic standards.

Wong v. Regents of the Univ. of California, 192 F.3d 807, 826

(9th Cir. 1999) (“Wong I”). Subsequently, the district court

entered summary judgment again, on a different ground, con-

cluding that Wong had not shown that he qualified as disabled

under the Acts. The current appeal presents the question of

whether the district court’s second entry of summary judg-

ment was proper.

WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA 6435

The facts of this case are outlined in detail in Wong I, 192

F.3d at 811-16. We briefly recount pertinent elements here,

along with the history of the case subsequent to our previous

decision.

As the district court observed, Wong’s academic history

has been filled with contradictions. In kindergarten he was

identified as suffering from a learning impairment, but in

grammar school he was certified as a gifted student. In middle

school he was assigned to a special class for assisted learning.

While attending high school and college, he regularly

requested extra time on assignments and essay examinations.

To keep up with his college classes, he said that he spent all

of his extra time outside of school reading for his classes. The

effort paid off, however, for he graduated from San Francisco

State University, magna cum laude, earning a B.S. in bio-

chemistry with a cumulative grade point average of 3.54 out

of 4.0. Wong went on to earn a master’s degree in cellular/

molecular biology from San Francisco State in 1984.

After taking the Medical College Admission Test four

times, without special accommodations, he was able to obtain

admission to the medical school at Davis. His admission was

not based upon any special allowance for a disabled condi-

tion.

Wong started at the medical school in the fall of 1989. The

medical school’s program consists of a four-year curriculum.

Typically, in the first two years, students take academic

courses in basic sciences. In the third year, they complete six

consecutive clinical “clerkships” in core areas of medical

practice, and in the fourth year, they take a series of more spe-

cialized clerkships. Wong completed the first two years of the

medical school program, the academic courses, on a normal

schedule, with a grade average slightly above a “B.” He had

also passed the required national board examination immedi-

ately following the second year of school. Wong did not

request or receive the benefit of any special accommodations

6436 WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA

during the first two years of medical school or in taking the

national board exam. Through this point, he had not identified

himself to the medical school as being “learning disabled” or

in need of accommodations.

When the program moved to the clinical clerkships in the

third year, however, Wong’s performance deteriorated sub-

stantially. He received a failing grade in his first clerkship and

withdrew from his second after his midterm evaluation

showed significant problems.2

Soon thereafter, his academic difficulties were com-

pounded by a serious family problem: Wong’s father was

diagnosed with lung cancer. The school granted Wong’s

request to take time off to be with his father. Wong used part

of that time to do reading in preparation for upcoming clerk-

ships, and after he returned to school, he passed three clerk-

ships. Unfortunately, his problems did not end at that point.

Ultimately Wong was diagnosed by the University’s Disabil-

ity Resource Center (“DRC”) as having a learning impairment

that limited his ability to process and communicate information.3

Based on the recommendation of the DRC, Wong requested

extra time to read and prepare for his clerkships. When able

to take several weeks off before a rotation in order to read in

advance and prepare for it, Wong completed clerkships with

passing grades and generally positive evaluations. There came

a point, however, when Wong’s request for another eight-

week reading period before his next clerkship, in Pediatrics,

was denied. A school official later gave a number of reasons

for denying Wong’s request, including that it was “unreason-

2

Wong’s grades were based on oral and written exams as well as on

evaluations of his interactions with patients in the clinical setting.

3

DRC doctors concluded that Wong had a disability that affects the way

he processes written and verbal information and expresses himself ver-

bally. While he was not given a more formal diagnosis of his learning

impairment, Dr. Margaret Steward, a psychologist and Medical School

faculty member, met with Wong to determine what accommodations

would help him complete his medical education successfully.

WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA 6437

able, unfair, and contrary to the purposes of the curriculum.”

Although Wong passed the written and oral exams for his

Pediatric rotation, his ward performance was deemed unsatis-

factory and he received a failing grade. After the relevant

school committees concluded that Wong was not qualified to

meet the school’s academic standards, he was dismissed from

the medical school in May 1995.

Wong filed a complaint in district court, alleging that the

University violated his rights under the ADA by failing to

accommodate his learning disability. The district court subse-

quently granted summary judgment for the University on two

grounds: (1) that the accommodation sought by Wong was

unreasonable, and (2) that the appellant was not “otherwise

qualified” to continue his medical studies because he could

not perform the tasks required by a doctor. Wong appealed.

Our court reversed the district court’s judgment and remanded

for further proceedings on the ground that Wong had raised

triable issues of fact. Wong I, 192 F.3d at 826.

In Wong I we held that in order to establish a prima facie

case of disability discrimination, Wong was required to pro-

duce evidence that:

(1) he is “disabled” as the Acts define that term; (2)

he is qualified to remain a student at the School of

Medicine, meaning that he can meet the essential eli-

gibility requirements of the school with or without

reasonable accommodation; (3) he “was dismissed

solely because of [his] disability;” and (4) the school

“receives federal financial assistance (for the Reha-

bilitation Act claim) or is a public entity (for the

ADA claim).”

Id. at 816 (internal footnote omitted) (applying the factors set

out in Zukle v. Regents of the Univ. of California, 166 F.3d

1041, 1045 (9th Cir. 1999)). We noted that “[f]or summary

judgment purposes, the University concedes that Wong has

6438 WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA

met the first and last elements of this test.” Id. The dispute

then focused on the second element: whether Wong was “oth-

erwise qualified” to satisfy the academic standards of the

Medical School, with or without reasonable accommodation.

In this appeal, however, the University no longer concedes

the first element, that Wong was disabled under the Acts. That

is, instead, the primary focus of this appeal. On remand, the

district court granted another motion for summary judgment

brought by the University, this time based on Wong’s inabil-

ity to establish a disability.

That motion for summary judgment was filed by the Uni-

versity after cut-off dates established by the district court for

identification of expert witnesses and for discovery. After a

status conference held on March 13, 2000, the court issued an

order which set the close of discovery on August 13, 2000.

The order stated that counsel was required to disclose the

names of any experts they proposed to offer at trial “not later

than forty-five (45) days before the close of discovery,” which

was June 29, 2000. The order also set the final pretrial confer-

ence for February 12, 2001, and scheduled trial to start on

May 15, 2001.

The University’s motion for summary judgment was filed

on September 1, 2000, about three weeks after the discovery

cut-off date, about two months after the deadline for identify-

ing expert witnesses, and about eight and one-half months

before the scheduled trial date. It argued that Wong was not

disabled within the meaning of the ADA. To support this con-

tention, the University relied on its identified expert, Dr. Mark

Lipian, who opined, among other things, that Wong was able

to learn and work with greater facility than the average per-

son.

Wong’s attorneys concluded that they would need addi-

tional expert testimony to rebut Dr. Lipian’s opinion. One of

Wong’s previously identified experts, Dr. Kay Runyan, gave

WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA 6439

Wong a number of additional tests to support an opinion

which was subsequently expressed in her declaration in oppo-

sition to the University’s motion for summary judgment. She

administered those tests with the help of an expert Wong had

not previously retained or identified, Dr. Bianca Hirsch.

Wong also retained Thomas Yankowski, a vocational coun-

selor, to rebut Dr. Lipian’s contention that Wong was not sub-

stantially limited insofar as his ability to work.

Wong filed his opposition to the University’s motion for

summary judgment on September 18, 2000, relying in large

part on the work of these previously undisclosed experts. Two

days later, Wong submitted a Supplemental Disclosure of

Expert Witnesses, stating that he did not disclose these

experts prior to his response to the University’s summary

judgment motion because he had not anticipated the Universi-

ty’s challenge to his disabled status.

The University challenged Wong’s identification of addi-

tional expert witnesses after the expert identification deadline

and the discovery cut-off date. That challenge was presented

to the district court in the context of the University’s motion

for summary judgment, with the University arguing that the

court should not consider testimony by witnesses who had not

been timely identified.

The district court agreed with the University on both sub-

jects. On the challenge to Wong’s additional expert witnesses,

the court excluded expert opinions and other evidence from

Dr. Hirsch and Mr. Yankowski. The court also limited Dr.

Runyan’s expert testimony to those opinions which were not

based upon the testing conducted by Dr. Hirsch.

In the same order, filed January 11, 2001, the district court

granted the University’s motion for summary judgment. The

court concluded that there was not a genuine issue of material

fact as to whether Wong was “substantially limited [in] the

6440 WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA

major life activities of learning, reading and working under 42

U.S.C. § 12102(A).”

As to the first two activities, the court concluded “that the

record, taken as a whole, could not lead a rational trier of fact

to find that plaintiff is substantially limited in the major life

activities of learning and reading. See Price v. National Bd.

of Medical Examiners, 966 F. Supp. 419 (S.D.W.Va. 1997)

(finding that plaintiffs were not disabled under the ADA

because they were able to learn as well or better than the aver-

age person in the general population).” Wong’s prior aca-

demic success, which won him admission to medical school

and which continued through the first two years of medical

school, was viewed as fatally inconsistent with his claim to be

disabled: “Given his previous academic success the issue

translates to whether he can demonstrate that most people, or

the average person, would not have difficulty with the third

and fourth years of medical school.” Having so defined the

question, the district court concluded that Wong did not make

a sufficient showing that he was “disabled” as to learning and

reading.

Regarding the major life activity of working, the district

court concluded that Wong “will only be precluded from jobs

that require very specific and detailed deductive reasoning in

an information-intense, rapid-flux, time-pressured or stressful

environment.” That assessment, the district court concluded,

did not establish that he would be foreclosed from a broad

range of jobs. “Given his academic achievements, however,

and his intellectual skills, Mr. Wong has an enormous range

of professional positions and occupations in which it is appar-

ent that he could engage in successfully.” Thus, the court held

that Wong had failed to demonstrate that he was substantially

limited as to working.

Wong contends that the district court erred in (1) excluding

the key expert witnesses that he argues could have established

his disabled status, and (2) holding that he did not raise a gen-

WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA 6441

uine issue of material fact as to his disabled status under the

Acts. We examine each contention in turn.

II. DISCUSSION

A. Exclusion of Supplemental Expert Testimony

Rulings regarding evidence made in the context of sum-

mary judgment are reviewed for an abuse of discretion.

Domingo v. T.K., 289 F.3d 600, 605 (9th Cir. 2002) (noting

limited appellate review “even when the rulings determine the

outcome of a motion for summary judgment”). The imposi-

tion of discovery sanctions are reviewed for an abuse of dis-

cretion. Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259

F.3d 1101, 1105 (9th Cir. 2001).

[1] The abuse of discretion standard is deferential, and

properly so, since the district court needs the authority to

manage the cases before it efficiently and effectively. In these

days of heavy caseloads, trial courts in both the federal and

state systems routinely set schedules and establish deadlines

to foster the efficient treatment and resolution of cases. Those

efforts will be successful only if the deadlines are taken seri-

ously by the parties, and the best way to encourage that is to

enforce the deadlines. Parties must understand that they will

pay a price for failure to comply strictly with scheduling and

other orders, and that failure to do so may properly support

severe sanctions and exclusions of evidence. The Federal

Rules of Civil Procedure explicitly authorize the establish-

ment of schedules and deadlines, in Rule 16(b), and the

enforcement of those schedules by the imposition of sanc-

tions, in Rule 16(f). As we observed in Johnson v. Mammoth

Recreations, Inc., 975 F.2d 604, 611 (9th Cir. 1992):

As the torrent of civil and criminal cases unleashed

in recent years has threatened to inundate the federal

courts, deliverance has been sought in the use of cal-

6442 WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA

endar management techniques. Rule 16 is an impor-

tant component of those techniques.

The March 15, 2000 pretrial order at issue here was clear in

advising the parties, among other things, that an expert wit-

ness not identified by the deadline would not be permitted to

testify, and that an expert would not be permitted to testify as

to “any information gathered or evaluated, or opinion formed,

after deposition taken subsequent to designation.”

Deadlines must not be enforced mindlessly, of course.

Sometimes there may be good reason to permit an identifica-

tion of additional witnesses after the established deadline. The

pretrial order at issue here took that into account and itself

established the standard for seeking relief from the order. It

stated that no expert witness not timely disclosed would be

permitted to testify “unless the party offering the witness

demonstrates: (a) that the necessity of the witness could not

have been reasonably anticipated at the time the lists were

exchanged; (b) the court and opposing counsel were promptly

notified upon discovery of the witness; and (c) that the wit-

ness was promptly proffered for deposition.”

Wong’s additional expert witnesses were promptly identi-

fied and offered to the University not long after the filing of

the University’s motion for summary judgment, so factors (b)

and (c) were likely satisfied. The district court concluded,

however, that Wong failed to satisfy factor (a). That conclu-

sion does not represent an abuse of discretion.

Wong argues that he could not reasonably have anticipated

the need for the additional witnesses as of the date set by the

pretrial order as the deadline for both parties to identify expert

witnesses, because he did not know that the University was

disputing that he was “disabled” under the Acts. He notes that

it was the University itself which diagnosed his learning dis-

ability in the first place, and, further, that the University did

WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA 6443

not dispute that element of his case at the time of its first

motion for summary judgment.

The diagnosis that Wong had a learning disability did not

constitute a legal opinion or a concession that Wong was “dis-

abled” under the meaning of the Acts, however. It is plain that

having an impairment does not necessarily mean that a person

is “disabled” for purposes of the Acts. Toyota, 534 U.S. at

195.

Nor does a decision by a defendant not to contest one ele-

ment of a plaintiff’s claim when bringing a motion for sum-

mary judgment mean or even imply that the given element

will be conceded at the time of trial. There is nothing unusual

about a defendant concentrating on limited aspects of a case

in a motion for summary judgment, without waiving its right

to contest other elements later, if the motion does not end the

case. As we explicitly noted in Wong I, one of the elements

Wong had to prove was that he was “ ‘disabled’ as the Acts

define that term.” 192 F.3d at 816. At that time, the issue of

whether Wong was disabled under the Acts was not in dis-

pute, because the University had conceded that element “for

summary judgment purposes.” Id. But nothing required the

University to concede that element for trial. A decision not to

contest one essential element when moving for summary

judgment based on a different essential element does not con-

stitute a permanent waiver by the movant on the issue in ques-

tion.

[2] After Wong I, the University put Wong on some mea-

sure of notice that his disabled status would be challenged. In

its status conference statement, filed with the district court on

March 6, 2000, the University stated that “[r]ecent United

States Supreme Court cases have more clearly defined what

constitutes a disability . . . such that defendant now believes

that an examination of the plaintiff is necessary and appropri-

ate in order to address the issue of whether plaintiff’s condi-

tion can be held to be a disability under the relevant statutes.”

6444 WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA

The same filing announced that the University anticipated

bringing a further motion for summary judgment. It does not

appear that the University subsequently followed up with a

specific request for an examination of plaintiff, but Wong

points to no other statement or action by the University subse-

quent to that time which justified his professed belief that the

University would not contest his condition as “disabled”

under the Acts. Wong may have hoped that he would not be

challenged on that element, but that is not nearly enough to

support the proposition that he could not have reasonably

anticipated the need to prove that element at trial. Wong I

clearly set out four elements Wong would have to prove, and

this was one of them. It was not unfair for the district court

to expect him to prepare to do so, and to identify the wit-

nesses he needed for that purpose, on a timely basis.

Moreover, as the district court observed in its order exclud-

ing Wong’s late-identified witnesses, “if plaintiff was in

doubt he could have resolved the issue with contention inter-

rogatories; he did not do so.” Wong has not offered a response

on appeal, let alone provided an explanation for that failure.

Similarly, the subject could have been covered by discovery

into the opinions held by Dr. Lipian, the expert witness relied

upon by the University in its motion for summary judgment.

The Defendant’s Disclosure of Expert Witnesses timely iden-

tified Dr. Lipian and described his anticipated testimony as

including “the nature and extent of any learning disabilities

the plaintiff had or has.” Wong could have taken his deposi-

tion or propounded interrogatories to ascertain his opinions,

including the opinions subsequently relied upon by the Uni-

versity in its summary judgment motion. Wong has not con-

tended that Dr. Lipian did not properly respond to any such

inquiries. If Wong was caught by surprise, it was not the Uni-

versity’s fault. Under those circumstances, we cannot say that

the district court abused its discretion in concluding that

Wong did not satisfy the requirement for adding expert wit-

nesses after the disclosure deadline: that it was not the case

WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA 6445

that “the necessity of the witness could not have been reason-

ably anticipated at the time the lists were exchanged.”

[3] Wong also argues that the district court’s denial of his

request to supplement his list of expert witnesses violated

Fed. R. Civ. P. 37(c)(1). That rule states in relevant part:

A party that without substantial justification fails to

disclose information required by Rule 26(a) or

26(e)(1), or to amend a prior response to discovery

as required by Rule 26(e)(2), is not, unless such fail-

ure is harmless, permitted to use as evidence at a

trial, at a hearing, or on a motion any witness or

information not so disclosed.

The rule excludes evidence from an untimely disclosed wit-

ness unless “the parties’ failure to disclose the required infor-

mation is substantially justified or harmless.” Yeti by Molly,

259 F.3d at 1106.

[4] Wong argues, in effect, that he satisfied this test under

Rule 37 for permitting testimony from a late-disclosed wit-

ness, because the late disclosure was either substantially justi-

fied, harmless, or both. We disagree.

Wong’s failure to identify necessary witnesses on a more

timely basis was, in the eyes of the district court, and in the

words of Rule 37, “without substantial justification,” for the

reasons discussed above. Nor, it may be inferred, did the dis-

trict court believe that the tardy identification was harmless,

even though the ultimate trial date was still some months

away. The same status conference order which set the dead-

line for expert identification and the completion of discovery

also set a deadline for resolving pretrial motions, such as the

University’s motion for summary judgment. In this instance,

it appears that the University filed its motion about as late as

it could while still complying with the schedule set by the

court. If Wong had been permitted to disregard the deadline

6446 WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA

for identifying expert witnesses, the rest of the schedule laid

out by the court months in advance, and understood by the

parties, would have to have been altered as well. Disruption

to the schedule of the court and other parties in that manner

is not harmless. Courts set such schedules to permit the court

and the parties to deal with cases in a thorough and orderly

manner, and they must be allowed to enforce them, unless

there are good reasons not to. The district court did not abuse

its discretion here in refusing to permit Wong to supplement

his disclosure with the additional expert witnesses and in bar-

ring testimony by and relying upon those witnesses.

B. “Disability” under the Acts

[5] The ADA prohibits discrimination by public entities

against qualified individuals with a disability. 42 U.S.C.

§§ 12131-12132. The Rehabilitation Act similarly provides

that “no otherwise qualified individual with a disability . . .

shall, solely by reason of her or his disability, be excluded

from the participation in, be denied the benefits of, or be sub-

jected to discrimination under any program or activity receiv-

ing federal financial assistance.” 29 U.S.C. § 794(a). The

University is a public entity subject to these provisions.

The key substantive issue in this case — the issue on which

the district court granted summary judgment to the University

— is whether Wong fell within the definition of “disabled”

under the Acts. If the district court was correct in concluding

that Wong was not “disabled,” then he did not qualify for the

protections provided by the Acts, and summary judgment was

properly granted against his legal claim. Wong’s argument on

appeal is that he demonstrated a genuine issue of material fact

as to whether he was disabled under the Acts, even with his

evidence limited by the district court’s exclusion of untimely

experts and opinions, discussed above. We review the district

court’s summary judgment de novo, and we view the facts in

a light most favorable to Wong. Fraser v. Goodale, 342 F.3d

WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA 6447

1032, 1037 (9th Cir. 2003), cert. denied, 124 S.Ct. 1663

(2004).

[6] The plaintiff bears the burden of proving that he or she

is disabled within the meaning of the Acts. Thornton v.

McClatchy Newspapers, Inc., 261 F.3d 789, 794 (9th Cir.

2001), later supplemented at 292 F.3d 1045 (9th Cir. 2002);

Wong I, 192 F.3d at 816. The ADA defines a disability as:

(A) a physical or mental impairment that substan-

tially limits one or more of the major life activities

of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

42 U.S.C. § 12102(2).

The focus of our attention here is on subsection (A), which

was the basis for the summary judgment entered by the dis-

trict court and the subject of Wong’s argument on appeal.4

The consideration of whether a given condition constitutes a

disability under subsection (A) involves three inquiries: (1)

whether Wong’s condition is a physical or mental impair-

ment, (2) whether the life activity as to which Wong alleges

he is limited is a major life activity, and (3) whether the

impairment substantially limits the identified major life activ-

ity. See Bragdon v. Abbott, 524 U.S. 624, 631 (1998); Fraser,

342 F.3d at 1038.

For current purposes, there is no dispute as to the first ques-

tion, whether Wong suffers from an impairment. The Univer-

sity’s Disability Resource Center diagnosed Wong to have a

learning disability or impairment that limited his ability to

4

Wong does not argue on appeal that he separately qualifies under sub-

sections (B) or (C).

6448 WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA

process and communicate information. At a minimum that is

sufficient to create a genuine issue of material fact as to

whether he suffers from an impairment. The district court did

not base its summary judgment on a conclusion to the con-

trary, and the University does not argue that point on appeal.

Nor is there a serious controversy as to whether the limita-

tions alleged by Wong involved major life activities. Wong

contends that he was substantially limited in learning, reading,

and working. Under the circumstances, we may assume that

each of those activities qualifies as a “major life activity” for

determining whether a person is disabled under the Acts.5

[7] The real dispute here is over the third inquiry: whether

Wong offered sufficient evidence that his impairment sub-

stantially limited him in a major life activity. The district

court concluded that he had not. We agree.

5

We have previously described “major life activities” as including “car-

ing for oneself, performing manual tasks, walking, seeing, hearing, speak-

ing, breathing, learning, and working.” Fraser v. Goodale, 342 F.3d 1032,

1038 (9th Cir. 2003); Thornton v. McClatchy Newspapers, Inc., 261 F.3d

789, 794 (9th Cir. 2001) (“working”); Vinson v. Thomas, 288 F.3d 1145,

1153 (9th Cir. 2002), cert. denied, 537 U.S. 1104 (2003) (“learning”). We

have not previously discussed the activity of “reading,” but other courts

have treated it as a major life activity. See, e.g., Bartlett v. New York State

Bd. of Law Examiners, 226 F.3d 69, 80 (2d Cir. 2000); Gonzales v.

National Bd. of Medical Examiners, 225 F.3d 620, 626 (6th Cir. 2000).

The Supreme Court in both Toyota, 534 U.S. at 200, and in Sutton v.

United Airlines, Inc., 527 U.S. 471, 492 (1999), expressed some doubt as

to the inclusion of “working” but found it unnecessary to decide the issue

in those cases. Similarly, in this case it is not necessary for us to consider

whether reading is a major life activity, or whether there is room to dispute

the characterization of working or learning as major life activities under

our caselaw. The district court did not base its summary judgment on a

conclusion that any of these activities was not a major life activity for the

purpose of defining “disability” under the Acts. Though it noted the poten-

tial for challenging the categories of reading and working, the University

has not actually argued that these activities do not qualify as major life

activities. Our resolution of this case on other grounds makes it unneces-

sary for us to devote further attention to that question.

WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA 6449

[8] As noted at the outset of this opinion, we are pointed

to that conclusion by the Supreme Court’s unanimous deci-

sion in Toyota Motor Manufacturing Kentucky, Inc. v. Wil-

liams, 534 U.S. 184 (2002). The Court stated that to “qualify

as disabled, a claimant must . . . show that the limitation on

the major life activity is ‘substantial.’ ” Id. at 195 (brackets

omitted). It observed that the word “ ‘[s]ubstantially’ in the

phrase ‘substantially limits’ suggests ‘considerable’ or ‘to a

large degree.’ . . . The word ‘substantial’ thus clearly pre-

cludes impairments that interfere in only a minor way . . .

from qualifying as disabilities.” Id. at 197. Similarly, it held

that the word “ ‘[m]ajor’ in the phrase ‘major life activities’

means important . . . . ‘Major life activities’ thus refers to

those activities that are of central importance to daily life.” Id.

And, it emphasized that “these terms need to be interpreted

strictly to create a demanding standard for qualifying as dis-

abled.” Id. (Emphasis added.)

The facts of the Toyota case illustrate the Court’s interpre-

tation of the Acts. The plaintiff in that case suffered from car-

pal tunnel syndrome and tendinitis, which limited her ability

to lift weight and to engage in repetitive arm movements. She

sued her former employer for violation of the ADA, alleging

that it failed to reasonably accommodate her disability. The

district court granted summary judgment to the employer,

finding that plaintiff was not disabled. The Sixth Circuit

reversed and reinstated her claim, holding that she was dis-

abled in the ability to perform manual tasks, because her ail-

ments prevented her from doing tasks associated with certain

types of jobs, including her previous position on an automo-

bile manufacturing assembly line.

The Supreme Court overturned the decision of the Sixth

Circuit, however, holding that the court of appeals had erred

by focusing on the manual tasks associated with plaintiff’s

job. Id. at 200. The Court elaborated: “When addressing the

major life activity of performing manual tasks, the central

inquiry must be whether the claimant is unable to perform the

6450 WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA

variety of tasks central to most people’s daily lives, not

whether the claimant is unable to perform the tasks associated

with her specific job.” Id. at 200-01. It went on to note that

“the manual tasks unique to any particular job are not neces-

sarily important parts of most people’s lives.” Id. at 201. The

manual tasks of central importance to most people’s daily

lives were described as things like doing household chores,

bathing, and brushing teeth, and those activities, according to

the Court, should have been considered in determining

whether the claimant was “disabled” under the Acts, by rea-

son of being substantially limited in her ability to perform

manual tasks. Id. at 201-02.

Our court interpreted and applied Toyota in the context of

a different major life activity in EEOC v. United Parcel Ser-

vice, Inc., 306 F.3d 794 (9th Cir. 2002). In that case, employ-

ees of UPS with monocular vision who wanted to drive

package vans but were not permitted to do so under the com-

pany’s vision protocols brought a discrimination action under

the ADA. At issue was the major life activity of “seeing,” and

specifically the question of whether the plaintiffs’ impairment

constituted a substantial limitation on seeing such that they

were “disabled” under the ADA. We concluded that:

[F]or a monocular individual to show that his impair-

ment is a disability, the impairment must prevent or

severely restrict use of his eyesight compared with

how unimpaired individuals normally use their eye-

sight in daily life . . . . [S]ome visual impairment

does not necessarily mean that the individual is sub-

stantially limited in seeing overall; put differently, it

does not follow that seeing as a whole is substan-

tially limited just because the individual has a defi-

ciency in some aspect of vision. The critical inquiry

is whether seeing as a whole is substantially limited

for purposes of daily living.

Id. at 802-03. (Emphasis added).

WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA 6451

The question for us, therefore, is whether Wong presented

sufficient evidence to demonstrate that he was substantially

limited in the specified major life activities for purposes of

daily living, or as compared to what is important in the daily

life of most people. He did not carry that burden.

[9] Regarding the activity of learning, Wong’s claim to be

“disabled” was contradicted by his ability to achieve aca-

demic success, and to do so without special accommodations.

Most notably, Wong completed the first two years of the med-

ical school program, the academic courses, on a normal

schedule, with a grade point average slightly above a “B,” and

he passed the required national board examination at that

point, both without the benefit of any special accommoda-

tions. That is not to say that a successful student by definition

cannot qualify as “disabled” under the Acts. A blind student

is properly considered to be disabled, because of the limita-

tion on the major life activity of seeing, even if she graduates

at the top of her class. Nor do we say that a successful student

cannot prove “disability” based on a learning impairment. A

learning-impaired student may properly be considered to be

disabled if he could not have achieved success without special

accommodations. But a student cannot successfully claim to

be disabled based on being substantially limited in his ability

to “learn” if he has not, in fact, been substantially limited, as

that term is used in the Acts.

[10] The relevant question for determining whether Wong

is “disabled” under the Acts was not whether he might be able

to prove to a trier of fact that his learning impairment makes

it impossible for him to keep up with a rigorous medical

school curriculum. It was whether his impairment substan-

tially limited his ability to learn as a whole, for purposes of

daily living, as compared to most people. The level of aca-

demic success Wong achieved during the first two years of

medical school, without any special accommodation provided

to him by the school, made that proposition implausible. His

record was to the contrary. Because the factual context made

6452 WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA

implausible his contention that he was disabled in the activity

of “learning” as compared to most people, he was required to

“come forward with more persuasive evidence than otherwise

would be necessary to show that there is a genuine issue for

trial.” Blue Ridge Insurance Co. v. Stanewich, 142 F.3d 1145,

1149 (9th Cir. 1998) (citing Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986)). He did not

present sufficient evidence in support of his contention to

establish a triable issue of fact.6

As for the activity of reading, Wong’s contention was not

that he could not read, but that, as a result of his learning dis-

ability, he read very slowly and often had to re-read material

several times. He cited evidence, for instance, that his reading

comprehension scores, when allowed to read without time

limits, were at the 99.5 percentile, but under time constraints

he read at the eighth grade level.7 In essence, it was argued

6

The term “learning disability” is commonly used, and it is used by the

dissent. In the current context that term can be misleading, however, for

it is clear that a person who has a “learning disability” is not necessarily

“disabled” under the Acts. The Acts use the term in a narrower fashion,

to cover only those persons who have an impairment that substantially

limits one of the major life activities. As a unanimous Supreme Court

made explicit in Toyota, 534 U.S. at 195, having an impairment does not

necessarily mean that a person is “disabled” for purposes of the Acts. The

Acts establish a “demanding standard.” Id. at 197. To be “disabled” under

the Acts, a person has to be substantially limited in a major life activity,

and that is measured by “most people’s daily lives,” not unique needs of

a particular position. Id. at 200-01. Although he may have a learning dis-

ability, Wong is not substantially limited in the life activity of “learning”

as compared to most people. The law compels accommodations for some-

one who is “disabled” as that term is used in the Acts, but not for everyone

who may have a condition described as a “learning disability.”

7

At least some of the evidence cited by Wong in his briefs was part of

the expert evidence excluded by the district court due to untimely identifi-

cation, as discussed above. Because we have affirmed that exclusion, that

evidence should properly not be considered in support of Wong’s chal-

lenge to the summary judgment entered by the district court. Unfortu-

nately, it is not entirely clear, notably with regard to the evidence

WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA 6453

that Wong read slowly, especially when compared to his own

reading comprehension ability without time limits, or to oth-

ers in his academic peer group. He did not, however, present

evidence to the district court or argue to us that he was sub-

stantially limited in his ability to read for purposes of daily

living, or as compared to what is important in the daily life

of most people. That is the appropriate standard. In Toyota,

the Court said that the ability to perform manual tasks should

be evaluated not by what claimant’s job might require, but by

claimant’s ability to perform household chores, bathe, and

brush teeth. 534 U.S. at 201-02. In EEOC v. United Parcel

Service, we referred to the ability to use eyesight in such daily

life activities as driving, reading, using tools, and playing

sports. 306 F.3d at 803. In this case, Wong has not established

that he was unable to read newspapers, government forms,

street signs, or the like. Although his academic achievement

is not directly inconsistent with the contention that he is sub-

stantially limited in reading, as it was with the claim based on

“learning,” the relationship between reading and academic

success is sufficiently close to make that argument a difficult

one to maintain. We agree with the district court that he did

not present sufficient evidence to establish a triable issue of

fact on that issue.

Wong’s argument that he was substantially limited in the

major life activity of working depended upon the testimony of

Mr. Yankowski, one of the experts excluded by the district

attributed to Dr. Runyan, what evidence cited in those briefs should be

considered at this point. Some of Dr. Runyan’s opinions were excluded by

the district court because they were based on the testing done by Dr. Hir-

sch after the expert witness identification and discovery cut-off dates. In

particular, the specific opinions described here appear to have been based

on those tests. We cite these particular opinions for ease of reference, for

they seem to express in the clearest terms the basis for Wong’s claim to

be disabled in the life activity of reading. In doing so, we do not hold that

this evidence should have been accepted or recognized by the district

court.

6454 WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA

court due to untimely identification. Because we have con-

cluded that the exclusion was not an abuse of discretion, this

argument necessarily fails, as well.

III. CONCLUSION

[11] We therefore affirm the judgment of the district court.

We admire Wong’s determination and his efforts to overcome

his impairment, and we can understand his disappointment at

not being able to achieve this ambition. As the Supreme Court

held in Toyota, however, “[m]erely having an impairment

does not make one disabled for purposes of the ADA.” 534

U.S. at 195. By the demanding standards of the Acts, Wong

is not substantially limited in a major life activity, so he does

not qualify for the special protections the Acts provide for

someone who is “disabled.”

AFFIRMED.

THOMAS, Circuit Judge, dissenting:

One of the central purposes of Title II of the Americans

with Disabilities Act is to provide equal opportunity for those

individuals who are qualified to receive government services

but cannot complete the program requirements without a rea-

sonable accommodation of their disability. Unfortunately, the

majority opinion turns this idea on its head by holding that,

as a matter of law, academic success definitively disproves

the existence of a learning disability. This interpretation

places individuals with disabilities in a classic Catch-22 situa-

tion. In order to receive an accommodation, the disabled per-

son must show that he or she can satisfy the program’s

minimum eligibility requirements. However, under the major-

ity theory, if the student meets those prerequisites, then the

student cannot receive an accommodation because establish-

ing qualification proves the student isn’t disabled. Not only

WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA 6455

does this interpretation evert the ADA’s underlying theory,

but it is antithetical to ADA’s requirement of individualized

assessment of disability.

Therefore, I must respectfully dissent.

I

The elements of an action under the Rehabilitation Act and

Title II of the ADA are well established. As we held in the

first iteration of this case:

To establish a prima facie case of discrimination

based upon his disability in violation of the Acts,

Wong must produce evidence that: (1) he is “dis-

abled” as the Acts define that term; (2) he is quali-

fied to remain a student at the School of Medicine,

meaning that he can meet the essential eligibility

requirements of the school with or without reason-

able accommodation; (3) he “was dismissed solely

because of [his] disability;” and (4) the school “re-

ceives federal financial assistance (for the Rehabili-

tation Act claim) or is a public entity (for the ADA

claim).” Zukle v. Regents of the Univ. of California,

166 F.3d 1041, 1045 (9th Cir. 1999).

Wong v. Regents of University of California, 192 F.3d 807,

816 (9th Cir. 1999).

In the first phase of this case, the University conceded

arguendo that Wong was disabled. Instead, the University

focused on the second element and successfully argued to the

district court that he could not meet the essential requirements

of medical school even with an accommodation. However, we

held that Wong had tendered sufficient evidence of his ability

to meet the requirements if given an accommodation to sur-

vive summary judgment. Quite naturally, on remand Wong

attempted to shore up his proof that he could satisfy perfor-

6456 WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA

mance requirements if given a reasonable accommodation.

The University filed a new motion for summary judgment,

claiming that Wong was not disabled because he had shown

academic success. The district court denied the motion, hold-

ing that there were genuine issues of material fact about that

issue. However, some eight months later, the district court

reversed course and granted summary judgment after oral

argument on an in limine motion. The district court’s essential

reasoning was that Wong’s record of academic success estab-

lished that he did not have a qualifying disability. In short,

Wong had proven himself out of a case in his attempts to

show that he could succeed if given a chance. As the approv-

ing majority opinion puts it:

Regarding the activity of learning, Wong’s claim to

be “disabled” is fatally contradicted by his ability to

achieve academic success, without special accom-

modations. Most notably, Wong completed the first

two years of the medical school program, the aca-

demic courses on a normal schedule, with a grade

point average slightly above a “B,” and he passed the

required national board examination at that point,

both without the benefit of any special accommoda-

tions. That is not to say that a successful student by

definition cannot qualify as “disabled” under the

Acts . . . . Nor do we say that a successful student

cannot prove “disability” based on a learning impair-

ment. A learning-impaired student may properly be

considered to be disabled if he could not have

achieved success without special accommodations

....

....

. . . The level of success Wong has achieved without

special accommodation precludes the possibility that

he is disabled under the Acts based on a learning

impairment.

WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA 6457

If we were reviewing a jury verdict adverse to Wong, those

sentiments might well be appropriate observations as a ratio-

nale for sustaining the jury verdict. However, this case comes

to us on summary judgment where we do not weigh the pre-

ponderance of the evidence, but decide simply whether genu-

ine issues of fact exist. In the summary judgment context —

and particularly given the history of the case — a history of

academic success alone cannot not justify the conclusion, as

a matter of law, that a plaintiff is not disabled. To do so places

the ADA plaintiff in an untenable situation where “[s]uccess

negates the existence of the disability, whereas failure justi-

fies dismissal for incompetency.” Andrew Weiss, Jumping to

Conclusions in “Jumping the Queue,” 51 Stan. L. Rev. 183,

205 (1998).

That is not the theory or the purpose of the ADA. The idea

of the ADA is to afford equal opportunity to qualified individ-

uals with disabilities; it is not to deny opportunity to the dis-

abled solely because meeting the prerequisites of qualification

demonstrates their abilities.

II

To analyze the issue before us properly, we need to return

to the fundamental question of what constitutes a disability

under the ADA, and how that determination is made in a par-

ticular case. The ADA defines a disability as “a physical or

mental impairment that substantially limits one or more of the

major life activities of [an] individual.” 42 U.S.C.

§ 12102(2)(A).

The first step is to determine whether the plaintiff has an

ADA recognized “impairment.” There is no doubt that learn-

ing disabilities fall within the ADA definition of impairment.

Indeed, mental and physical impairments are defined to

include “specific learning disabilities.” 28 C.F.R. § 35.104.

Federal law has long recognized learning disabilities as

impairments. The Individuals with Disabilities Education Act,

6458 WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA

20 U.S.C. §§ 1400-1409, specifically recognized those stu-

dents with learning disabilities as qualifying for coverage.1 20

U.S.C. § 1401 (3). The Secretary of Education is empowered

to make grants to colleges and universities to provide “profes-

sional development and technical assistance in order for stu-

dents with learning disabilities to receive a quality

postsecondary education.” 20 U.S.C.A. § 1140a.

Although learning disabilities are unquestionably consid-

ered to be qualifying impairments, not all impairments are

considered to be disabilities under the ADA. In order to be

entitled to any kind of accommodation under the ADA, an

individual must demonstrate that the qualifying impairment

“substantially limits” a “major life activity.” 42 U.S.C.

§ 12102(2)(A). It is uncontested that “learning” is considered

a major life activity under the ADA. See 28 C.F.R. § 35.104

(2003) (defining “major life activity” to include learning). In

the ADA context, “substantially limits” means “[s]ignificantly

restricted as to the condition, manner or duration under which

an individual can perform a particular major life activity as

compared to the condition, manner or duration under which

the average person in the general population can perform that

same major life activity.” 29 C.F.R. § 1630.2(j)(1)(ii) (2003).

Thus, in our case, we start from the agreed premise that

learning disabilities constitute qualifying ADA impairments,

and that learning is a major life activity. The remaining dis-

ability issue is whether Wong’s learning disability substan-

1

The IDEA defines a learning disability as “a disorder in one or more

of the basic psychological processes involved in understanding or in using

language, spoken or written, which disorder may manifest itself in imper-

fect ability to listen, think, speak, read, write, spell, or do mathematical

calculations. Such term includes such conditions as perceptual disabilities,

brain injury, minimal brain dysfunction, dyslexia, and developmental

aphasia. Such term does not include a learning problem that is primarily

the result of visual, hearing or motor disabilities, of mental retardation, of

emotional disturbance, or of environmental, cultural, or economic disad-

vantage.” 20 U.S.C. § 1401 (26).

WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA 6459

tially limits his ability to learn. Accordingly, to survive

summary judgment on the question of disability, Wong was

required to tender sufficient evidence to demonstrate that a

genuine issue of material fact existed as to whether his learn-

ing disability significantly restricted the condition, manner or

duration of his learning ability as compared to the average

person in the general population. To that end, Wong tendered

proof that:

• He was first identified as having learning disabil-

ities while in kindergarten and required special

tutoring;

• In middle school, he was assigned to a special

class for assisted learning;

• During high school, junior college, and San Fran-

cisco State University, he spent all of his time

outside school reading in order to keep up, and

regularly requested extra time on assignments

and essay exams;

• The University’s own Disability Resource Center

diagnosed him as having a learning disability or

impairment that limited his ability to process

information;

• His reading comprehension scores were in the

99th percentile when he was allowed to read

without time limits, but that under time con-

straints his scores dropped to the eighth grade

level; and

• When Wong was accorded — at the suggestion

of a Medical School’s faculty member — an

additional reading period prior to his clerkships

in Medicine and Surgery, he passed both with

generally positive evaluations and “B” grades.

6460 WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA

In sum, Wong tendered evidence of a long history of diag-

nosed learning disability that significantly restricted his abil-

ity to learn in the same manner as the average population.

This is sufficient evidence to survive summary judgment on

the question of the existence of a disability, and that should

be the end of the inquiry.

However, the apparent problem in this case is that Wong

worked too hard and succeeded too well. As with many stu-

dents with learning disabilities, Wong developed alternative

strategies to compensate for his disability and received special

assistance throughout his elementary, secondary, and under-

graduate education. As the result of his diligence, coupled

with accommodations, Wong achieved sufficient academic

success to be admitted to medical school. Without accommo-

dation, he was able to successfully complete his first two

years. On this basis, the majority concludes, as a matter of

law, that “a student cannot successfully claim to be disabled

based on a limitation of his ability to ‘learn’ with such a

record of achievement.” Although evidence of past academic

success is certainly relevant to an ultimate factual determina-

tion of whether Wong is disabled, it plainly does not entitle

the University to judgment as a matter of law. If so, as a mat-

ter of law, no student admitted to medical school could ever

be considered to have a learning disability because the very

act of admission would definitively disprove it.

The ADA does not draw such bright lines. Its guiding prin-

ciple is that a disability determination is an individualized

inquiry. Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S.

184, 199 (2002); Thornton v. McClatchy Newspapers, Inc.,

261 F.3d 789, 794 (9th Cir. 2001). Aside from those impair-

ments that might constitute a per se ADA disability, see

Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 566 (1999), a

determination whether a plaintiff is disabled within the mean-

ing of the ADA requires a sensitive, fact-based analysis,

which includes the nature and severity of the impairment, 29

C.F.R. § 1630.2(j)(2)(i), and the effectiveness and burdens of

WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA 6461

mitigating measures used by the plaintiff, see Sutton v. United

Air Lines, 527 U.S. 471, 488 (1999), among other consider-

ations. In an individualized disability assessment “[w]e do not

decide whether every diabetic is disabled, and we do not

decide whether every severely obese person is not disabled.”

Fraser v. Goodale, 342 F.3d 1032, 1039 (9th Cir. 2003). This

admonition is particularly apt in the examination of learning

disabilities: The diagnosis of the nature and severity of dys-

lexia, dyscalculia, aphasia, and attention deficient disorder is

far more complex and less precise than, for example, the

detection of a staphylococci infection. Disabilities covered by

the ADA, and learning disabilities in particular, defy general-

ization and uniform treatment. Thus, in our context, it is just

as inappropriate to decide that all persons of achievement are

per se not disabled as it is to decide that all persons with

learning disabilities are disabled within the meaning of the

ADA. See, e.g., Vinson v. Thomas, 288 F.3d 1145, 1153-54

(9th Cir. 2002) (finding a genuine issue of material fact where

a college student alleged that his dyslexia substantially

impaired his ability to learn). In this case the holding that aca-

demic achievement precludes a disability finding is also

belied by the subsequent events. Indeed, if our story had con-

cluded at the end of Wong’s second year in medical school,

no suit would have ensued. However, Wong’s performance in

clinical clerkships was not stellar. He failed his first clerkship

and withdrew from his second. Wong nonetheless believed

that if given the accommodation of extra time to prepare for

his clerkships, he could successfully complete them. And,

when given extra preparation time, he successfully completed

his clerkships. However, when denied extra preparation time,

he did not succeed. Thus, even if we focus our inquiry on his

academic record, the record is far from conclusive. But that

is a matter for a trier of fact.

The majority’s approach effectively bars the entire class of

learning disabled students from receiving ADA accommoda-

tions in graduate school. This plainly contradicts the required

individualized assessment of disability. The grant of summary

6462 WONG v. REGENTS OF THE UNIVERSITY OF CALIFORNIA

judgment based on academic achievement as a matter of law

cannot be reconciled with the ADA, Supreme Court case law,

or Ninth Circuit precedent.

For these reasons, I respectfully dissent.