Disability Expert WitnessesAfter a three-day trial, a jury determined that in terminating Plaintiff’s employment, the defendant employer discriminated against her because of a disability. Further, Defendant interfered with her right to take family medical leave.  

The jury declined to award Plaintiff damages on the discrimination claim, but awarded her $15,000 in back pay on her family medical leave claim. Plaintiff had also alleged that in its decision to terminate her employment, Defendant discriminated against her due to her pregnancy and retaliated against her because she exercised her right to take family medical leave. However, the jury returned a verdict in favor of Defendant on those claims. Hence, she was successful on about half of her claims. 

Plaintiff’s filed a post-trial motion for supplemental relief, and the Court awarded nominal damages on the disability claim, liquidated damages on the family medical leave interference claim, and certain injunctive relief. 

Plaintiff requested reimbursement for the expense incurred in the retention of an expert who provided expert witness testimony. Defendant argued that the fee was excessive given that on Defendant’s motion, the Court excluded some of the proposed opinions the expert had developed and because Plaintiff didn’t prevail on all of her claims.  

United States Magistrate Judge John C. Nivison wrote that with respect to the expert witness fee, Plaintiff sought to recover $9,455 paid to an expert witness. Defendant argued that the expert witness fee should be reduced to account for vague billing entries, excessive billing, and Plaintiff’s limited success in the case.  

Plaintiff retained an expert witness to opine that her health conditions were serious conditions entitled to protection under state and federal disability law, and that her conditions reasonably would have rendered Plaintiff unable to perform her work responsibilities during the relevant time. The medical expert opined, inter alia, that Plaintiff’s symptoms on the morning in question were the product of a health condition and rendered Plaintiff unable to perform her job at that time. 

The expert billed for a total of 42.58 hours on the case and voluntarily reduced his fee by $3,320. The amount requested, $9,455, reflected the reduction. 

Defendant challenged the expert’s testimony through a motion in limine. The Court granted in part the motion, and precluded the expert from testifying “regarding the expectations of an employer and the reasonableness of Defendant’s management of Plaintiff’s condition.”  

Given that Defendant successfully challenged a portion of the expert‘s expected testimony, a further reduction of the fee incurred prior to the filing of the motion in limine was appropriate, Judge Nivison held. Thus, the judge reduced the pre-motion amount by 30% ($1,440). As such, the amount allowed for the expert witness fee was $8,015. 

Judge Nivison went on to opine that provided Plaintiff qualified as a “prevailing party,” the Rehabilitation Act, 29 U.S.C. § 794a(b), and the Americans with Disabilities Act, 42 U.S.C. § 12205, authorize courts to award a reasonable attorney fee, litigation expenses, and costs.  

When used in a federal fee-shifting statute, ‘the term “prevailing party” [is] a legal term of art,’”  the judge held, citing precedent. 

The concepts that shape the term apply broadly to the entire universe of federal fee-shifting statutes.To qualify as a prevailing party, the judge explained that a litigant must show that a material alteration of the parties’ legal relationship has taken place as a result of the litigation.  

By receiving a judgment in her favor on the merits, Judge Nivison held that Plaintiff qualified as a prevailing party. 

Because Plaintiff prevailed on her claims under the Family Medical Leave Act and the Maine Family Medical Requirements, she was entitled to recover a reasonable attorney fees and other costs, including expert witness fees.