Expert Witness: Lessons Learned
KMA serves as an expert witness for a national developer of multifamily housing in its defense of an FHA discrimination case by an advocacy group. A ruling last week from the United States District Court for the District of Maryland set a very low bar for establishing violations of the FHA’s accessible design and construction requirements and set very narrow parameters for including defendant’s expert testimony.
Establishing Compliance:
- Compliance is based only on an objective standard – those recognized as safe harbors by HUD or “compliance with a recognized, comparable, objective measure of accessibility.”
- A violation exists if a condition “falls outside” of any recognized safe harbor.
- A single violation of the objective standard can be the basis of a successful claim under the FHA
- No allowance for “industry accepted tolerances” despite their inclusion in a safe harbor.
Expert Testimony:
- Allowed
- Disputation of material fact based on an objective standard. For example:
- Whether or not an object protruded into a circulation route and therefore constituted a protruding object.
- Plaintiff’s expert cited as a door where the clear maneuvering space was not within 8” of the door plane – a requirement that is not contained within all safe harbors.
- Excluded:
- Any statement, reference or opinion:
- Addressing settlement agreements or consent decrees in other cases. Even though a condition has been accepted by the plaintiff in an earlier settlement agreement, it was not accepted in this case.
- Regarding the usability of a space or element despite not fully conforming to an objective standard. Even though a person using a wheelchair could navigate all the contested conditions, it was not allowed.
- Regarding the defendant’s efforts to comply with the FHA design and construction requirements. Due diligence was not a defense.
- Any statement, reference or opinion:
- Disputation of material fact based on an objective standard. For example:
A ruling by a district court does not set national precedence, but it does suggest that in mounting a defense to future complaints developers will face a significant challenge. The ruling is available for reading in pdf format.