Court denies Plaintiff ADA Expert Witness fees after Defendant casts doubt over time spent

“An unscrupulous law firm sends a disabled individual to as many businesses as possible in order to have him or her aggressively seek out all violations of the ADA. Then, rather than simply informing a business of the violations and attempting to remedy through ‘conciliation and voluntary compliance’, a lawsuit is filed. Faced with costly litigation and a potentially drastic judgment against them, most businesses quickly settle.”

– appearing before the Arkansas District Court on 8th July 2013, this was how Defendants Zaharopoulos Properties, LLC described the “scheme” used to frame them and challenged the Plaintiff’s billing of his ADA expert witness fees.

Background of the case

Plaintiff Jimmy Ashley brought this action under Title III of the Americans with Disability Act, which prohibits disability-based discrimination in places of public accommodation. Injunctive relief was sought by Plaintiff to make the Grecian Steak House and the Grecian Plaza, both owned by Defendants Zaharopoulos Properties LLC., readily accessible to him and other wheelchair users. As requested by the parties, on 5th April 2013 the Court entered a consent decree and judgment. Plaintiff then sought $10,627.50 in attorney’s fees, $2,228.34 in costs, and $5,800 in expert fees.

The Americans with Disability Act – a few facts

In 42 U.S.C. § 12205 the Americans with Disability Act provides: “In any action or administrative proceeding pursuant to [the ADA], the court or agency, in its discretion, may allow a prevailing party … a reasonable attorney’s fee, including litigation expenses, and costs.” According to 42 U.S.C. § 12117(a) the ADA also provides that the powers, remedies, and procedures set forth under Title VII, which include a provision for reasonable attorney’s fees to prevailing parties, shall apply to actions under the ADA.

What made the Court deny the Plaintiff his ADA Expert Witness fees in this case?

Expert fees totaling $5,800 was claimed by the Plaintiff in this case – billing the Grecian Plaza expense list of $3,200 for “Export (sic) Report (travel, site survey, report preparation, etc.: 16 hours),” and the Grecian Steak House expense list of $2,600 for “Export (sic) Report (travel, site survey, report preparation, etc.: 13 hours).”

The Defendant testified that the Plaintiff’s expert was present at the subject properties for two hours, and expressed disbelief that the expert reasonably expended twenty-seven hours preparing reports.

Plaintiff reiterated “While Defendant may have … only spent 2 hours with Plaintiff’s expert at the site inspections, Defendant was not present with Plaintiff’s expert when he traveled to and from Arkansas, drafted his report, prepared CAD drawings to illustrate his recommendations, inserted the citations to appropriate ADA Standards, referenced the appropriate photographs depicting the existing conditions, referenced the appropriate figures and diagrams, and researched the cost of remediation as necessary to completely compile his report. Simply put, Defendant has made no reasonable argument to bring any of Plaintiff’s time or expense entries into question.”

Considering arguments of both the sides, the Court held that even though the Court has discretion to award expert fees in this case, the fee petition must provide enough detail to allow the Court to determine whether the hours claimed are reasonable for the work performed and that the rate charged was reasonable. In the present case the insufficient information submitted provides no basis for the Court to determine whether the expert fees requested were reasonable or not. Hence $5,800 in expert fees cannot be awarded to the Plaintiff.

Conclusion

Plaintiff’s motion for attorney’s fees, expert fees, and costs were granted in part and denied in part. He was awarded $9,810 in attorney’s fees, but costs and expert fees were denied.

**Written for the web by the EWG Editorial Team

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