Patterson v. Six Flags Theme Parks Inc.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Melvin Patterson, No. 2:21-cv-02398-KJM-AC 12 Plaintiff, ORDER 13 v. Six Flags Theme Parks Incorporated, et al., 1S Defendants. 16 17 In this disability discrimination action, the court has set a bench trial for September 24, 18 | 2024. In advance of the trial, plaintiff has filed a motion in limine to exclude defendants’ expert 19 | testimony. The court takes the matter under submission without holding a hearing and for the 20 | reasons below, grants the motion. 21 | I. BACKGROUND 22 Plaintiff Melvin Patterson is deaf. First Am. Compl. (FAC) § 1, ECF No. 27. He brings 23 | this action under Title III of the Americans with Disabilities Act and the California Unruh Civil 24 | Rights Act against defendants Six Flags Theme Parks, Inc., Six Flags Entertainment Corp., and 25 | Park Management Corp. (collectively, defendants). See id. 11-13, 70-91. Plaintiff alleges 26 | defendants discriminated against him by refusing to provide an American Sign Language (ASL) 27 | interpreter for planned visits to defendants’ amusement park, Six Flags Discovery Kingdom in 28 | Vallejo, California. See, e.g., id. J§ 4-5. After the dispositive motion deadline passed, the court

1 held a final pretrial conference on March 29, 2024. Mins. Final Pretrial Conf., ECF No. 50; see 2 also Min. Order, ECF No. 46. As noted, a bench trial is set for September 24, 2024. Final 3 Pretrial Order at 2, 7, ECF No. 51.1 4 In anticipation of the trial, plaintiff has moved in limine to exclude the testimony of 5 defendants’ retained expert, Robert F. Minnick, under Federal Rule of Evidence 702 and Daubert 6 v. Merrell Dow Pharmaceuticals, Inc. (Daubert I), 509 U.S. 579 (1993). See id. at 3; Mot., ECF 7 No. 47. Plaintiff argues Mr. Minnick is not qualified, his anticipated testimony is unreliable and 8 unhelpful, his testimony contains pure conclusions of law, and he improperly offers opinions as to 9 other witnesses’ state of mind. See generally Mot. 10 Mr. Minnick is the president of a company that offers consulting, expert witness and other 11 services “on how to use a structured approach to safety to get results.” Minnick Rep. at 15, Mot. 12 Ex. A, ECF No. 47-1. He previously worked as a technical director of safety and accessibility at 13 Walt Disney Parks & Resorts in Florida, among other positions. See id. at 16. He holds a 14 bachelor’s degree in chemical engineering and an MBA. Id. at 17. 15 Mr. Minnick describes the following opinions in his report, which the court has numbered 16 for ease of reference:2 17 (1) “After examining the documents listed [in my report], I do not find any evidence 18 of discrimination by the defendant. I saw evidence of one Six Flags Guest 19 Relations employee getting confused about their service offerings for persons with 20 disabilities, but no intentional discrimination.” Minnick Rep. at 6; Minnick Dep. 21 44:24–45:10, 73:17–18, Mot. Ex. B, ECF No. 47-2.3

1 When citing page numbers on filings, the court uses the pagination automatically generated by the CM/ECF system unless noted otherwise. 2 To the extent defendants argue Mr. Minnick could testify reliably about other topics, see Opp’n at 8–9, ECF No. 53, such testimony would be improper because it is outside the scope of his expert report, see Fed. R. Civ. P. 26(a)(2)(B) (an expert report must contain “a complete statement of all opinions the witness will express and the basis and reasons for them”). 3 For the deposition transcript, the court cites to the page numbers on the transcript itself and not to the pagination automatically generated by the CM/ECF system. 1 (2) “Requests for ASL interpreters are very rare at Six Flags Discovery Kingdom. . . . 2 Since requests are so rare, it’s not surprising to this expert that a seasonal 3 employee such as Mercedes Wilson in the Six Flags Operations Office would be 4 confused about the range of service offerings for the deaf or hard of hearing.” 5 Minnick Rep. at 6 (citation omitted); see also Minnick Dep. 60:2–5. 6 (3) “Melvin Patterson appears to be angling for a fight with Six Flags Discovery 7 Kingdom after his first few frustrating phone calls and their refusal to refund him 8 his season pass expenditure.” Minnick Rep. at 11. 9 (4) “Park operations require [seven to fourteen days’] lead-time to understand and 10 process the service request, contact a sign language contractor, schedule the ASL 11 interpreter and respond to the Guest with an agreed-to meeting place.” Id. at 12. 12 (5) “Same day service for a rare request is not a reasonable accommodation.” Id.; see 13 also Minnick Dep. 56:3–7. 14 Plaintiff’s motion in limine is fully briefed. See generally Opp’n; Reply, ECF No. 55. In 15 response to defendants’ request at the final pretrial conference, the court resolves plaintiff’s 16 motion in limine in advance of the settlement conference before the assigned magistrate judge 17 and before the first day of trial. See Final Pretrial Order at 3; Mins. Final Pretrial Conf. 18 II. LEGAL STANDARDS 19 “A motion in limine is a procedural mechanism to limit in advance testimony or evidence 20 in a particular area.” United States v. Heller, 551 F.3d 1108, 1111 (9th Cir. 2009) (citation 21 omitted). Although a threshold ruling on evidentiary issues such as the one before the court is 22 “generally superfluous” in the context of a bench trial, id. at 1112, the court finds ruling on this 23 matter now will conserve judicial resources and streamline the issues during the settlement 24 conference and at trial, see, e.g., Parker v. BNSF Ry. Co., No. 14-00176, 2021 WL 4819910, at *2 25 (W.D. Wash. Oct. 15, 2021) (“[A]lthough threshold evidentiary rulings in a bench trial are 26 generally superfluous, ruling on these motions will streamline the issues and save time.”); see 27 also Ketab Corp. v. Mesriani & Assocs., P.C., 734 F. App’x 401, 410 (9th Cir. 2018) 28 (unpublished) (district court does not abuse discretion by ruling on a motion in limine prior to a 1 bench trial). The court issues its ruling on the motion in limine based on the record currently 2 before it. Each ruling is made without prejudice and is subject to proper renewal, in whole or in 3 part, during trial. See United States v. Whittemore, 776 F.3d 1074, 1082 (9th Cir. 2015) (“A 4 ruling on a motion in limine is not a final order . . . such rulings ‘are by their very nature 5 preliminary.’” (quoting Coursen v. A.H. Robins Co., 764 F.2d 1329, 1342 (9th Cir. 1985))). 6 Expert testimony is admissible if the expert witness is qualified and if the witness’s 7 testimony is relevant and reliable. See Fed. R. Evid. 702; Kumho Tire Co., Ltd. v. Carmichael, 8 526 U.S. 137, 147 (1999); Daubert I, 509 U.S. at 589–92. To determine whether an expert has 9 the appropriate qualifications, the court considers whether the expert offers some special 10 knowledge, skills, experience, training, or education on the subject matter of the testimony 11 contemplated. See Fed. R. Evid. 702; United States v. Hankey, 203 F.3d 1160, 1168 (9th Cir. 12 2000). To assess whether an expert’s testimony is relevant, the court considers whether the 13 testimony “logically advances a material aspect of the proposing party’s case.” Daubert v. 14 Merrell Dow Pharms., Inc. (Daubert II), 43 F.3d 1311, 1315 (9th Cir. 1995). This is not “merely 15 a reiteration of the general relevancy requirement of Rule 402.” Id. at 1321 n.17. The opinion 16 must speak “clearly and directly to an issue in dispute in the case.” Id. Finally, to evaluate 17 whether expert testimony is reliable, the court considers whether “the knowledge underlying it 18 has a reliable basis in the knowledge and experience of the relevant discipline.” Primiano v. 19 Cook, 598 F.3d 558, 565 (9th Cir. 2010) (quoting United States v. Sandoval-Mendoza, 20 472 F.3d 645, 654 (9th Cir. 2006)). “[T]he expert’s bald assurance of validity is not enough.” 21 Daubert II, 43 F.3d at 1316. “It is the proponent of the expert who has the burden of proving 22 admissibility.” Lust By & Through Lust v. Merrell Dow Pharms., Inc., 89 F.3d 594, 598 (9th Cir. 23 1996). 24 III. ANALYSIS 25 As a preliminary matter, defendants have shown Mr. Minnick is at least minimally 26 “qualified as an expert” under Rule 702 based on his experience and knowledge regarding ADA 27 compliance and accessibility in theme parks and other businesses from 2002 until today. See 28 Minnick Rep. at 15–17; see also Minnick Dep. 9:23–12:22; Mot. at 4–5; Opp’n at 3–4. His lack 1 of “granular” experience that might be more directly relevant to plaintiff’s claims does not show 2 he is unqualified, though it could reduce the weight of his opinions at trial. Maney v. Oregon, 3 No. 20-00570, 2024 WL 1695083, at *9 (D. Or. Apr. 19, 2024) (collecting authority). Although 4 Mr. Minnick is qualified, his testimony is inadmissible. 5 To begin, opinions (1) and (5)—that there is no “evidence of discrimination by the 6 defendant” and that same-day interpretive services are not reasonable—are “inappropriate 7 subjects for expert testimony.” Aguilar v. Int’l Longshoremen’s Union Loc. No. 10, 8 966 F.2d 443, 447 (9th Cir. 1992). “It is well-established . . . that expert testimony concerning an 9 ultimate issue is not per se improper.” Hangarter v. Provident Life & Acc. Ins. Co., 10 373 F.3d 998, 1016 (9th Cir. 2004) (quoting Mukhtar v. Cal. State Univ., Hayward, 11 299 F.3d 1053, 1066 n.10 (9th Cir. 2002)); Fed. R. Evid. 704(a) (“An opinion is not objectionable 12 just because it embraces an ultimate issue.”). However, “an expert witness cannot give an 13 opinion as to her legal conclusion, i.e., an opinion on an ultimate issue of law.” Hangarter, 14 373 F.3d at 1016 (quoting Mukhtar, 299 F.3d at 1066 n.10). “[E]xpert testimony that consists of 15 legal conclusions is unhelpful and inadmissible.” Arjangrad v. JPMorgan Chase Bank, N.A., 16 No. 10-01157, 2012 WL 1890372, at *7 (D. Or. May 23, 2012). Mr. Minnick offers legal 17 conclusions—that there was no discrimination and offering same-day ASL interpretive service is 18 not reasonable. His testimony inappropriately goes to the ultimate issues of law and is therefore 19 inadmissible. Other district courts have excluded similar opinions in other ADA cases. See, e.g., 20 U.S. Equal Emp. Opportunity Comm’n v. MJC, Inc., No. 17-00371, 2019 WL 2992013, at *4 21 (D. Haw. July 9, 2019) (expert opinion on whether defendants “violated the ADA and whether 22 their conduct was malicious and/or reckless” inadmissible because these are ultimate legal 23 issues); Stiner v. Brookdale Senior Living, Inc., 665 F. Supp. 3d 1150, 1171 (N.D. Cal. 2023) 24 (expert’s opinion on whether defendant’s “policies or practices are out of compliance with the 25 ADA and its regulations are improper legal conclusions”). 26 Nor would opinions (1) and (5) “help the trier of fact to understand the evidence or to 27 determine a fact in issue.” Fed. R. Evid. 702(a). As described in his report, opinions (1) and (5) 28 are based on Mr. Minnick’s review of discovery production and evidence in this case, including 1 depositions, responses to interrogatories, and pleadings. Minnick Rep. at 7; Minnick Dep. 46:21– 2 23. He does not explain how he used his expertise to evaluate that evidence. For that reason, it is 3 unclear what helpful testimony Mr. Minnick could provide that is outside “the common 4 knowledge of the average layman.” United States v. Vallejo, 237 F.3d 1008, 1019 (9th Cir. 5 2001), amended by 246 F.3d 1150 (9th Cir. 2001); see also Daubert I, 509 U.S. at 590 (“[T]he 6 word ‘knowledge’ connotes more than subjective belief or unsupported speculation.”). 7 Next, opinions (2) and (3) are about another person’s state of mind. Questions of state of 8 mind are properly for the trier of fact. See MJC, 2019 WL 2992013, at *5 (collecting cases). 9 Mr. Minnick therefore cannot testify at trial “that a seasonal employee such as Mercedes Wilson 10 in the Six Flags Operations Office would be confused about the range of service offerings for the 11 deaf or hard of hearing.” Minnick Rep. at 6; see also Minnick Dep. 59:7–8, 60:4–5. Nor may 12 Mr. Minnick testify at trial that plaintiff “appears to be angling for a fight with Six Flags 13 Discovery Kingdom after his first few frustrating phone calls and their refusal to refund him his 14 season pass expenditure.” Minnick Rep. at 11. 15 Opinion (2) also lacks any analytical foundation. Mr. Minnick provides no analysis on 16 how rare the requests for ASL interpreters are—for example, on average, how many requests do 17 defendants receive per week, month, or even year? Nor does he explain or know how much time 18 it would take to find an ASL interpreter in the area, such that same day requests or requests made 19 less than seven days in advance cannot be reasonably honored. 20 What remains, then is opinion (4), i.e., that “[p]ark operations require [seven to fourteen 21 days’] lead-time to understand and process the service request, contact a sign language contractor, 22 schedule the ASL interpreter and respond to the Guest with an agreed-to meeting place.” 23 Minnick Rep. at 12. Mr. Minnick does not explain the basis of this opinion or what method he 24 used to reach it. He does not describe any research. Nor does he know how many days it takes 25 for an average or typical amusement park, let alone these particular defendants, to obtain an in- 26 person sign language interpreter or even an interpreter via the use of Video Remote Interpreting 27 services. Minnick Dep. 27:14–29:1, 33:4–13, 34:13–17, 40:25–41:12. Nor does he testify about 28 the industry standards for the amount of time needed to honor requests for ASL interpreters. 1 Rather, he explains that Disney, his former employer, “asks for two-week notice” because that 2 particular theme park attracts a lot of international guests, and it would take time to find 3 appropriate foreign language sign language interpreters—for example, a British sign language 4 interpreter or a Chinese sign language interpreter. Id. at 35:17–36:1, 57:6–17. He also testified 5 vaguely at his deposition that the relevant standard “depends,” and he said theme parks “need to 6 establish their policy . . . based on availability of services around the park[.]” Id. at 71:13–24. 7 Although he states different theme parks have different policies “based on their experience,” id. at 8 34:16–17, he does not appear to know what defendants’ experience is and why defendants’ 9 policies are reasonable, if they are, in light of those experiences. This opinion too is unreliable. 10 IV. CONCLUSION 11 “[A]n expert, whether basing testimony upon professional studies or personal experience, 12 [must] employ[] in the courtroom the same level of intellectual rigor that characterizes the 13 practice of an expert in the relevant field.” Kumho Tire, 526 U.S. at 152. Based on the record 14 before it, the court cannot conclude Mr. Minnick’s opinions meet that standard of intellectual 15 rigor. 16 For the reasons above, the court grants plaintiff’s motion in limine to exclude 17 Mr. Minnick’s expert testimony. The hearing set for May 17, 2024, is hereby vacated. 18 This order resolves ECF No. 47. 19 IT IS SO ORDERED. 20 DATED: May 9, 2024.