I
Intro

Prior to the amendments to the ADA, a person with a disability had to prove that they had a physical or mental impairment that substantially limited a major life activity. A person with a disability still has to prove that. However, before the amendments a person under Toyota Motor Manufacturing, Kentucky v. Williams had to show a physical or mental impairment that severely restricted or prevented a person from performing a major life activity. Further, if the person uses mitigating measures, then those mitigating measures per Sutton v. United Airlines had to be factored in as well. What that meant as a practical matter was that 90% of ADA litigation was over whether a person had a disability in the first place. It also meant utilization of expert testimony to figure out whether a person was severely restricted or prevented from performing a major life activity. It also meant utilization of an expert if the person was using mitigating measures to figure out whether that person even after mitigating measures was severely prevented or restricted from performing a major life activity. With the amendments, the need for this kind of expert becomes far less necessary, if at all, since in most cases it’s going to be pretty obvious whether a person is an individual with a disability. That said, might there be a need for another kind of expert? That is, an ADA compliance expert that would evaluate the case and then testify as to whether the practices were in or out of compliance with the ADA, it’s implementing regulations, etc.

Full Disclosure And Note about This Particular Blog Entry: My practice has for some time included such work. Also note, that when I use the term ADA compliance expert in this blog entry , I am in no way referring to myself, but rather I am using the term in the context of a person designated as such during the course of a case in litigation involving the ADA.

Utilizing an ADA compliance expert creates several questions. First, is such testimony even admissible? Second, does it matter if such testimony is not admissible? Third, assuming the testimony is admissible, can an attorney get expert witness fees back when they prevail in an ADA case?

I got the idea for this blog entry after reading (my thanks to the Wait a Second Blog, which you can find in my blog roll), the recent case from the U.S. Court of Appeals for the Second Circuit entitled Gortat v. Capala Brothers, Inc.. That case was not an ADA case at all, but rather a Fair Labor Standards Act case. In that case, the Second Circuit held that since expert witness fees are not specified in the Fair Labor Standards Act, expert witness fees are not recoverable. In light of my disclosure above, it made me wonder whether the same would apply to an ADA matter with respect to any testimony going to ADA compliance.

As is my usual practice, the blog entry has been divided into categories: Introduction; would the ADA compliance expert testimony be admissible?; the law; what if the ADA compliance expert testimony is not admissible?; can you get the fees back in an ADA matter assuming the testimony is admissible?; and takeaways. The reader is free to focus on any or all of the categories.

II
Would the ADA Compliance Expert Testimony Be Admissible?

A. The Law

The admission of expert testimony is within the discretion of the trial court and is properly admissible when it serves to assist the trier of fact in understanding the evidence or in determining a fact in issue. However, resolving doubtful questions of law is the distinct and exclusive province of the trial judge. U.S. v. Weitzenhoff, 35 F.3d 1275, 1287 (9th Cir. 1993). Further, admitting expert testimony on contested issues of law is manifestly erroneous if the judge fails to instruct the jury on those points. Id. Other cases are phrased similarly. For example, one case when dealing with experts testifying as to the Americans with Disabilities Act Architectural Guidelines (ADAAG), said that although an expert may not provide testimony on an ultimate legal issue, that person may testify as to findings supporting the ultimate issue. Further, an expert may refer to the law in expressing an opinion without crossing the line into a legal conclusion providing that opinion contains underlying factual support. See Kalani v. Starbucks Corporation.

B. So, what does this mean in plain English?

1. The ADA is an incredibly complex law as we know from our blog. Therefore, the argument certainly exists that there are situations where an ADA compliance expert would serve to assist the trier of fact in understanding the evidence or in determining a fact in issue.

2. The testimony of an ADA compliance expert would need to be phrased in terms of compliance and not in terms of whether the ADA was violated.

3. The judge would have to instruct the jury on any matters testified to by the ADA compliance expert.

4. The matters testified to by the ADA compliance expert would need to be based upon underlying facts.

C. Due to the way the architectural guidelines are incorporated into the ADA, you certainly see and will continue to see a lot of ADA compliance experts in the area of whether the architectural guidelines were satisfied and which set of architectural guidelines apply.

D. Don’t forget about Daubert. That case holds that the methodology of the expert must make sense. I don’t believe this should be an issue with respect to architects and even attorneys testifying with respect to ADA compliance as their methodology is well known.

III

What if the ADA compliance expert testimony is not admissible?

If the ADA compliance expert testimony is not admissible (it isn’t a slam dunk that such testimony is admissible and especially so if §B is not observed), does it still makes sense to utilize a person to give such testimony? The answer to that question is twofold. First, in such a situation, a person may or may not be able to retrieve those fees as part of a settlement. Even so, if my experience is typical- which or may not be the case-, utilization of such a person in the litigation could well drive settlement regardless of whether the testimony is deemed ultimately admissible since the case is better understood by all parties.

IV

Can You Get the Fees Back in an ADA matter?

The answer to this question is yes regardless of whether title I, title II, or title III is involved. 42 U.S.C. § 12205, which applies to all three titles of the ADA, specifically allows for litigation expenses as part of the award should a party prevail. Further, legislative history clearly indicates Congress included the term litigation expenses in order to authorize the court to shift costs such as expert witness fees, travel expenses and the preparation of exhibits. See, Lovell v. Chandler. It is even more clear with respect to title II matters that expert witness fees would be recoverable as the remedies for title II, 42 USC § 12133, specifically references back to the Rehabilitation Act. Further, when you follow out that string with respect to the Rehabilitation Act, the remedies specifically and explicitly includes expert witness fees.

V
Takeaways:

1. Expert testimony going to whether the person has a physical or mental impairment or whether they are substantially limited in a major life activity with or without mitigating measures would seem to be, except in the rarest of cases, no longer necessary in light of the amendments to the ADA, but that is not to say testimony isn’t needed with respect to substantiating the disability of the individual. This is a huge change from the situation before the amendments to the ADA.

2. Considering the way the ADAAG is woven into the ADA itself, certainly expect lots of expert testimony from architects and people specializing in architectural compliance vis a vis the ADA with regards to whether those guidelines are satisfied.

3. An argument exist, though is it is not a slam dunk, that utilizing an ADA compliance expert with respect to practices may be admissible as it could assist the trier of fact in understanding the evidence or in determining a fact in issue.

4. Regardless of whether the ADA compliance testimony pertains to § V2 or § V3 of this blog entry, such testimony has to be phrased in terms of compliance with the ADA and not in terms of violations of the ADA and also needs to be based upon the facts of the case. Further, there would have to be jury instructions with respect to the issue the testimony covered.

One Response to Changing Role of Expert in ADA Matters?

Very practical blog for those of us who sometimes get hired as experts in ADA matters. Very often the job of an expert in a Title III matter is not to give any opinion at all, but just to be the vehicle for transmitting what should be undisputed facts about slopes, widths, and so forth to the court. It is a fact that a doorway has more than 32 inches of clearance and it is a legal conclusion that it satisfies the clearance requirements in the Standards. No need for any opinions at all.

I think there should be a real role for experts on problems of accessibility when the specifications are not quite met; that is, is there really a denial of access if the door has 31.75 inches of clearance. However, the courts seem to universally hold that the ADA Standards are not a safe harbor, but a mandatory building code (although they won’t put it that way) and that standing does not require any damage beyond the psychic harm of seeing an ADA violation. This makes it easy on the courts since it allows most ADA cases to be decided as a matter of law. I don’t think, however, it is what the law intended.

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