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Jorgensen v. Ritz-Carlton Hotel Company LLC

United States District Court, D. Colorado

August 8, 2017



          Michael E. Hegarty, United States Magistrate Judge

         Defendant seeks to exclude two of Plaintiff's experts pursuant to Federal Rules of Evidence 403 and 702. ECF Nos. 67, 68. Additionally, Plaintiff seeks to exclude eleven of Defendant's non-retained experts. ECF No. 70. The Court will permit Plaintiff's expert, Josh Bauer, to testify regarding the plumbing in Defendant's hotel and restaurant and the cause of the drain backups. However, the Court holds that Mr. Bauer is not qualified to testify about proper hotel management and the maintenance and engineering department's communication system. The Court next holds that Plaintiff's expert, David Corsun, may render opinions except as to whether the drain clogs and resulting water accumulation was a dangerous condition. Therefore, the Court grants in part and denies in part Defendant's motions. Regarding Plaintiff's motion, the Court finds that Defendant provides a sufficient summary of the facts and opinions to which its non-retained experts will testify. Accordingly, Plaintiff's motion is denied.


         Plaintiff filed her Complaint in state court on March 16, 2016, asserting claims for premises liability and negligence. ECF No. 2. According to Plaintiff, Defendant permitted water to accumulate on the floor of the Ritz-Carlton hotel in Denver, Colorado. Id. at ¶ 5. The water caused Plaintiff to fall and sustain serious injuries to her back, neck, and lower left leg. Id. at ¶ 9. Defendant removed the case to this Court on April 6, 2016. Notice of Removal, ECF No. 1.

         On March 30, 2017, while the parties were engaging in discovery, Plaintiff dismissed the negligence claim. ECF No. 65. On April 19, 2017, Defendant filed the present motions to exclude the testimony of Plaintiff's experts. ECF Nos. 67, 68. Plaintiff endorsed Josh Bauer as an expert in plumbing and the standards for hotel maintenance and engineering departments. See Expert Report of Josh Bauer, ECF No. 67-1. Additionally, Plaintiff endorsed David Corsun as an expert in hotel industry standards and effective management practices. See Expert Report of David Corsun, ECF No. 68-1. Then, on April 24, 2017, Plaintiff filed the present motion to exclude eleven of Defendant's employees or former employees who Defendant disclosed as non-retained experts. ECF No. 70. Defendant seeks to have these witnesses testify regarding “the reasonable steps that Ritz-Carlton took to prevent water from entering onto the patron floor area.” Def.'s Disclosures 3-4, ECF No. 70-1.


         I. Federal Rule of Evidence 702

         Federal Rule of Evidence 702 states, in pertinent part:

[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed. R. Evid. 702. As the rule makes clear, while required, it is not sufficient that an expert be qualified to give opinions in a particular subject area. Rather, courts must perform a two-step analysis. 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 990 (10th Cir. 2006). First, courts determine whether the expert is qualified by “knowledge, skill, experience, training, or education, ” id. (quoting Fed.R.Evid. 702), and whether the testimony will assist the jury in understanding the evidence or determining a fact in issue. See, e.g., United Telecomms., Inc. v. Am. Television & Comm. Corp., 536 F.2d 1310, 1317 (10th Cir. 1976) (“[E]xpert testimony is not necessary where the matter in issue is such that the jury can be expected to draw the correct inferences from the facts presented.”).

         Next, the Court must assess the specific proffered opinions for relevance and reliability. See 103 Investors I, L.P., 470 F.3d at 990; see also Fed. R. Evid. 702 (requiring that the testimony be “based upon sufficient facts or data, ” be the “product of reliable principles and methods, ” and reflect a reliable application of “the principles and methods . . . to the facts of the case”). Rule 702 “imposes on the district court a gatekeeper function to ‘ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.'” United States v. Gabaldon, 389 F.3d 1090, 1098 (10th Cir. 2004) (quoting Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993)). To execute that function, the Court must “assess the reasoning and methodology underlying the expert's opinion, and determine whether it is both scientifically valid and applicable to a particular set of facts.” Dodge v. Cotter Corp., 328 F.3d 1212, 1221 (10th Cir. 2003) (citing Daubert, 509 U.S. at 592-93). When assessing reliability, “the court may consider several nondispositive factors: (1) whether the proffered theory can [be] and has been tested; (2) whether the theory has been subject to peer review; (3) the known or potential rate of error; and (4) the general acceptance of a methodology in the relevant scientific community.” 103 Investors I, L.P., 470 F.3d at 990 (citing Daubert, 509 U.S. at 593-94). These considerations are not exhaustive. Rather, “the trial judge must have considerable leeway in deciding in a particular case how to go about determining whether particular expert testimony is reliable.” Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). Ultimately, the test requires that the expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of any expert in the relevant field.” Id.

         While the proponent of the challenged testimony has the burden of establishing admissibility, its proffer is tested against the standard of reliability, not correctness; a proponent need only prove that “the witness has sufficient expertise to choose and apply a methodology, that the methodology applied was reliable, that sufficient facts and data as required by the methodology were used and that the methodology was otherwise reliably applied.” United States v. Crabbe, 556 F.Supp.2d 1217, 1221 (D. Colo. 2008) (citing Mitchell v. Gencorp Inc., 165 F.3d 778, 781 (10th Cir. 1999)). “[E]xclusion of expert testimony under Rule 702 ‘is the exception rather than the rule.'” Heer v. Costco Wholesale Corp., 589 F. App'x 854, 861 (10th Cir. 2014) (quoting Fed.R.Evid. 702 advisory committee notes (2000)).

         II. Federal Rule of Civil Procedure 26(a)(2)(C)

         Federal Rule of Civil Procedure 26(a)(2)(C) requires parties to disclose the non-retained expert witnesses from which they seek to elicit testimony at trial. The “disclosure must state: (i) the subject matter under which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify.” Fed.R.Civ.P. 26(a)(2)(C). “A summary is defined as a brief account that states the main points of a larger body of information.” Nicastle v. Adams Cty. Sheriff's Office, No.10-cv-00816-REB-KMT, 2011 WL 1674954, at *1 (D. Colo. May 3, 2011).

         “The requirements of Rule 26(a)(2)(C) ‘differ substantially from the more detailed expatiation required of a report provided by a retained expert.'” Davis v. GEO Corp., No. 10-cv-02229-WJM-KMT, 2012 WL 882405, at *3 (D. Colo. Mar. 15, 2012) (quoting Nicastle, 2011 WL 1674954, at *1). However, a party “cannot satisfy its obligations under Rule 26(a)(2)(C) by merely pointing to large swaths of information, like general references to otherwise unidentified deposition ...

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