Biglaw

Disney's Terrible Argument In Wrongful Death Case Should Be A Lesson For Biglaw Attorneys Everywhere

Not every argument needs to go in the brief.

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Mickey Mouse Disney RF

(Photo by Joe Raedle/Getty Images)

I’m a fan of the Disney Parks. I have deep opinions about the new Lightning Lane system that allows you to bypass the standby line — for a fee. I watched every minute of Jenny Nicholson’s four-hour dissection of the failure of the Star Wars hotel. I cheered at the D23 announcements of park expansion and immediately started imaging what to wear when Villains Land opens. You might even call me a Disney adult, which is fine.

I’m also a lawyer by trade and write about the legal industry. So basically everyone I know has sent me coverage of the latest legal maneuvers in a wrongful death lawsuit facing the mouse. And I’m sure you’ve heard the basics — Kanokporn Tangsuan, a doctor at NYU, died in October after dining in Disney Spring’s Raglan Road. She had severe nut and dairy allergies and, despite allegedly informing her server of this and asking multiple times about her food, died of “anaphylaxis due to elevated levels of dairy and nut in her system.” Her husband, Jeffrey Piccolo, brought a wrongful death lawsuit against Disney on behalf of his late wife’s estate.

Disney would like to compel arbitration in the case, and has advanced some attention-getting details to make their case. The filing argues that because Piccolo downloaded a free trial of Disney+ two years ago (though he apparently canceled before he was charged), he’s bound by the terms of service which says users must arbitrate all disputes with Disney. Piccolo also purchased tickets to EPCOT, which has a similar mandatory arbitration clause.

Of course, the claim that downloading — a trial, no less! — a streaming service precludes this wrongful death lawsuit has gotten so much attention. Piccolo’s attorneys wrote of the request, “The notion that terms agreed to by a consumer when creating a Disney+ free trial account would forever bar that consumer’s right to a jury trial in any dispute with any Disney affiliate or subsidiary, is so outrageously unreasonable and unfair as to shock the judicial conscience, and this Court should not enforce such an agreement.” And honestly that’s been the most common sentiment in the general public.

And whatever you think about the legality of mandatory arbitration clauses — it’s shockingly obvious this was a terrible idea on the part of Disney. The mouse has some elite Biglaw lawyers — White & Case — on the case, and I bet they thought they ate when they found Piccolo’s Disney+ trial subscription. But just because an argument is colorable doesn’t mean you *should* make it. Hell, even limiting the request for arbitration to the park ticket purchase would have been superior — that’s at least related to the death of Tangsuan. And on a gut-check level is a ton less absurd than suggesting a streaming service download prevents a wrongful death lawsuit. But the lawyers just couldn’t help themselves. They saw MOAR arguments to make and just went ahead with them, regardless of the flood of negative publicity that might follow.

Because this case becoming widely known cable news fodder damages the sterling image Disney Parks enjoys. Historically, Disney has a great reputation when it comes to allergy accommodations — they flag safely prepared food, let kids trick or treat for allergy safe options at their Halloween parties, and provide guides on how to best prepare for a vacation at Disney with food allergies. Families that live with food allergies are known to select a Disney vacation because it is easier to deal with their allergies there than at alternatives. The attention this case is now receiving — because of this boneheaded legal argument — undoes literal years of Disney’s hard work. All of a sudden the Disney bubble has been popped for allergy families (who already have to stay hyper vigilant even in the most accommodating situations) and they’re left with a not-so-magical impression of Disney.

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Regardless of the legal merits of the case, as a public relations matter I cannot understand why Disney didn’t quickly (and quietly) settle and avoid this unwanted attention. What an unforced error.

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Kathryn Rubino HeadshotKathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].

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