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Lister v. Hyatt Corp.

United States District Court, W.D. Washington, Seattle

December 9, 2019

KATHRYN LISTER, Plaintiff,
v.
HYATT CORPORATION, Defendant.

          ORDER ON MOTIONS FOR SUMMARY JUDGMENT AND TO EXCLUDE EXPERT WITNESSES

          JAMES L. ROBART United States District Judge

         I. INTRODUCTION

         Before the court are four motions: (1) Plaintiff Kathryn Lister's motion for partial summary judgment on certain affirmative defenses (1st Plf. PSJM (Dkt. # 22)); (2) Defendant Hyatt Corporation's (“Hyatt”) motion for summary judgment on Ms. Lister's claims (Def. MSJ (Dkt. # 30)); (3) Ms. Lister's motion for partial summary judgment on her status as an invitee (2d Plf. PSJM (Dkt. # 32)); and (4) Hyatt's motion to exclude expert testimony (Def. MTE (Dkt. # 40)). The court has reviewed the motions, the parties' submissions filed in support of and in opposition to the motions, the relevant portions of the record, and the applicable law. Being fully advised, [1] the court (1) GRANTS in part and DENIES in part Ms. Lister's motion for summary judgment on certain affirmative defenses; (2) GRANTS in part and DENIES in part Hyatt's motion to exclude expert testimony; (3) GRANTS Ms. Lister's motion for partial summary judgment on her status as an invitee; and (4) DENIES Hyatt's motion for summary judgment.

         II. BACKGROUND[2]

         A. Factual Background

         This matter arises from a slip and fall at the Hyatt Regency Bellevue in Bellevue, Washington, which is owned by Hyatt. (See Compl. (Dkt. # 1-2) ¶¶ 2.1-2.8.) Ms. Lister alleges that, on June 15, 2017, she slipped and fell in vomit near the entrance to the women's restroom next to Hyatt's lobby. (See id.) Ms. Lister alleges she incurred injuries from the fall. (See id. ¶ 3.4.) // On June 15, 2017, shortly before midnight, Ms. Lister went to the 13 Coins Restaurant in Bellevue, Washington. (See 10/17/19 Skinner Decl. (Dkt. # 31) ¶ 2, Ex. 1 (“Lister Dep.”)[3] at 25:1-20 (indicating that Ms. Lister only recalls the time she arrived at 13 Coins from a recent review of Hyatt's security video); 11/1/19 Graham Decl. (Dkt. # 44) ¶¶ 2-3, Exs. 1-2 (attaching copies of the June 15, 2017, Hyatt Regency Bellevue security video) (hereinafter, “Video”); see also Def. MSJ at 3 (citing Compl. ¶ 2.2) (indicating the date of Ms. Lister's visit to 13 Coins was June 15, 2017).) Shortly after 11:55 p.m., Ms. Lister slipped and fell in vomit that was on the floor of Hyatt's lobby, which adjoins 13 Coins. (See Lister Dep. at 36:25-37:11; see also Video at 11:55.)

         On the night of her fall, Ms. Lister took an elevator from the parking garage directly into 13 Coins. (Lister Dep. at 25:21-26:1; 29:4-8.) She did not pass through Hyatt to get to the restaurant. (See id.) A pair of interior doors connects Hyatt's lobby and 13 Coins. (See Lister Dep. at 32:4-12.) On the night of Ms. Lister's fall, the double doors between 13 Coins and Hyatt's lobby were wide open. (Id. at 32:6-9, 13-16.)

         Hyatt produced a copy of the security video from the lobby area on the night of June 15, 2017. (See Video.) At approximately 11:25 p.m., the video depicts two women walking from 13 Coins into Hyatt's lobby. (See id.) The two women proceed down the corridor adjacent to Hyatt's lobby, and one of the women appears to vomit on the tile flooring in the area near the restroom where Ms. Lister eventually slips and falls. (See id.; Lister Dep. at 37:36:19-37:11.)

         At approximately 11:36 p.m., the video depicts a security guard, who was identified through discovery as Kyle Crandall, walking down the corridor adjacent to Hyatt's lobby and the area where the woman vomited. (See Video; see generally 10/17/19 Skinner Decl. ¶ 6, Ex. 5 (“Crandall Dep.”).) Mr. Crandall continues past the area of contamination and appears to look down at the ground near the end of the hallway. (See Video.) The video depicts Mr. Crandall walking back through the area near the vomit again at approximately 11:41 p.m. (See id.)

         Just before 11:55 p.m., the video depicts Ms. Lister leaving the 13 Coins Restaurant and walking down the corridor adjacent to Hyatt's lobby toward Hyatt's restrooms. (See id.) Ms. Lister testified that she needed to use the restroom and chose to use the restroom near Hyatt's lobby because she knew where it was located. (Lister Dep. at 31:7-32:16.) Just after 11:55 p.m., the video depicts Ms. Lister slipping on Hyatt's tile flooring where one of the two women at the beginning of the video appeared to vomit. (See Video.) Ms. Lister did not see the vomit on the tile flooring prior to her fall. (Lister Dep. at 44:1-5.) Prior to her fall, she was looking up for the restroom sign. (Id. at 39:20-40:6.) She only realized that there was vomit on the floor after she fell. (Id. at 43:15-25.) Approximately 30 minutes passed between what appears to be the vomiting incident on the video and Ms. Lister's slip and fall. (See Video.)

         At approximately 11:59 p.m., a few minutes after Ms. Lister's fall, the video depicts Mr. Crandall walking down the corridor adjacent to Hyatt's lobby a third time. (See id.) Again, he appears to look down at the ground in the hallway. (See id.) Mr. Crandall testifies that he saw the vomit on the floor outside the restroom and reported it “[a] little before midnight.” (Crandall Dep. at 10:20-25.) In his subsequent incident report, Mr. Crandall noted that, as he was “walking near the level one bathroom, ” he “walked through a puddle of vomit” and “immediately” reported the spill. (Crandall Dep., Ex. 1 (attaching Incident Report).) Mr. Crandall testified that “after watching the video, ” he believes that he did not see the vomit until after Ms. Lister slipped and fell. (Id. at 24:1-25.) He testified that he would have called his dispatch or the “central communications center” on his radio, reported the spill, and asked someone to come and clean it up. (Id. at 12:2-8; 11:20-13:18.) Mr. Crandall testified that his dispatch would have called Hyatt's front desk to report the problem. (Id.)

         Following her fall, Ms. Lister returned to the 13 Coins Restaurant. (See Video.) While she was at 13 Coins, Mr. Crandall talked with her and “took a report” of her fall. (Crandell Dep. at 17:15-19:12; 25:13-19; & Ex. 1.) Mr. Crandall told Ms. Lister that he wanted to call an aid car for her, but she declined. (Id. at 18:7-25.)

         Mr. Crandall works as a security guard for Kemper Freeman Properties (“Kemper”). (Id. at 6:7-17.) Alex Dantes, who was Hyatt's Director of Operations at the time of Ms. Lister's accident, [4] testified that Kemper “[p]rovided security, filled out incident reports, reviewed cameras, ” and performed “general security” for Hyatt. (11/1/19 Graham Decl. ¶ 5, Ex. 4 (“Dantes Dep.”)[5] at 22:5-8.) He also testified that if a Kemper security guard “walked by and saw something on the floor, ” Hyatt expected the security guard to notify Hyatt so that a Hyatt employee could clean it up. (Id. at 22:20-23:1.) Mr. Dantes also testified that one of the duties of a Kemper security guard is to take incident reports for accidents that happen at Hyatt's facility. (Id. at 35:13-20 (“That's what we hire [Kemper] for is to provide security and document things of significance for the hotel.”).)[6]

         On the night of Ms. Lister's fall, Hyatt employees Roxanne Taggart-Hugo and Jaeson Bloom were working at the front desk. (10/17/19 Skinner Decl. ¶ 3, Ex. 2 (“Clark Dep.”)[7] at 56:16-21; id. ¶ 4, Ex. 3 (“Taggart-Hugo Dep.”) at 32:19-33:15; id. ¶ 5, Ex. 4 (“Bloom Dep.”) at 5:25-64, 6:12-22.) Hyatt insists no one reported the spill until Ms. Lister's fall. (See Def. MSJ at 4 (“[Ms. Taggart-Hugo] does not recall anyone reporting the presence of a spill near the restrooms until after [Ms. Lister's] fall.”).) However, as the court has previously noted, Ms. Taggart-Hugo's deposition testimony is not definitive and does not necessarily support that conclusion. (See 10/15/19 Order (Dkt. # 29) at 2-3.)

         Ms. Taggart-Hugo testified as follows:

Q: Did anybody tell you about the spill on the floor of the bathroom?
A: I don't remember being reported the spill. But once I looked at my emails, it was - I had written that the 13 Coins hostess had informed me.
Q: Okay. Do you know what time that was?
A: I didn't write in the email what time it was. Again, I would have to speculate exactly what I wrote down. But, you know, in the following email chains, I said before midnight.
Q: Do you know when Kathryn fell, what time?
A: I would have to speculate . . . exactly what time, but I wrote around midnight, I think I wrote 12:05ish.
Q: Do you know where you got that time from?
A: Looking at the time on the computer and writing it down on a note.
Q: Do you know whether that the time would have been when you learned about from the person from 13 Coins?
A: I don't remember.
Q: Do you know what time Kathryn fell?
A: No.

(Hugo-Taggart Dep. at 30:22-31:19.) Mr. Bloom has no recollection of or knowledge concerning any of the events surrounding Ms. Lister's June 15, 2018, fall.[8] (Bloom Dep. at 17:23-20:24.)

         Hyatt's Federal Rule of Civil Procedure 30(b)(6) deponent, Sean Clark, testified that both Hyatt's lobby and the restrooms adjacent to the lobby are open to the public. (Clark Dep. at 42:4-6; 43:1-3.) He testified that, in addition to 13 Coins, other businesses also operate adjacent to Hyatt's lobby area, including Fonte Coffee and Eques, which is Hyatt's restaurant on the second floor. (Id. at 41:9-15.) He testified that he is aware that people who are not staying overnight use Hyatt's restrooms and that no one is or ever has been excluded from using Hyatt's restrooms unless they have been formally trespassed. (Id. at 42:10-21.) He testified that there are no signs anywhere on the premises indicating that only Hyatt's guests may use Hyatt's restrooms. (Id. at 42:22-25.)

         Mr. Dantes also testified that people are never excluded from using the bathrooms in Hyatt's lobby and that anyone can use the bathrooms unless they have been “trespassed” or are “visibly not doing any kind of business within the hotel.” (Dantes Dep. at 45:10-16.) Mr. Dantes testified that Hyatt permitted guests of the 13 Coins restaurant to use Hyatt's restrooms, and he personally saw 13 Coins' guests leave the bar and use Hyatt's restrooms. (Id. at 49:7-18.) Mr. Dantes also testified that at the time of Ms. Lister's accident, 13 Coins restaurant provided 24-hour food service and overnight room service for Hyatt's guests. (Id. at 45:17-24.) Finally, he testified that Hyatt received a portion of the proceeds from these 13 Coins' food and room service sales. (Id. at 45:11-48:21.)

         B. Procedural Background

         On or about May 31, 2018, Ms. Lister filed a lawsuit against Hyatt in King County Superior Court. (See Compl.) On June 28, 2018, Hyatt removed Ms. Lister's lawsuit to federal court. (See Not. of Removal (Dkt. # 1).) The court issued a scheduling order setting July 31, 2019, as the deadline for expert disclosures and September 30, 2019, as the discovery cut-off. (Sched. Order (Dkt. # 19) at 1.) On July 11, 2019, at the request of both parties, the court extended the deadline for expert witness disclosures from July 31, 2019, to August 30, 2019. (7/11/19 Order (Dkt. # 21) at 2.) Rebuttal expert disclosures were due on September 29, 2019-30 days after the expert witness disclosure deadline. See Fed. R. Civ. P. 26(a)(2)(C)(ii) (“. . . [T]he disclosure must be made . . . if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(20(B) or (C) [which relate to expert witness disclosures], within 30 days after the other party's disclosure.”).

         On September 26, 2018, as a part of her Federal Rule of Civil Procedure 26(a)(1) initial disclosures, Ms. Lister identified Theodore Becker, PhD, as a potential expert witness. (10/29/19 Skinner Decl. (Dkt. # 41) ¶ 3, Ex. 2 at 4-5.) On November 5, 2018, Ms. Lister served her responses to Hyatt's first written discovery requests. (See Id. ¶ 4.) With her responses, she produced Dr. Becker's curriculum vitae (“CV”), including his publication list, and his expert report. (See Id. ¶ 4, Ex. 3.)

         On August 1, 2019, Ms. Lister served her first supplemental discovery responses and produced (1) an expert report and a CV for Joellen Gill, and (2) an expert report and a CV, which included a list of publications, for James Pritchett, MD. (Id. ¶ 5, Ex. 4 at 20, 31-44, 53-84.)

         In both her initial disclosures and subsequent discovery responses, Ms. Lister identified several treating medical providers as witnesses who may have knowledge concerning the nature and extent of her injuries, treatment, and causation, including: (1) Cory Heidleberger, MD; (2) Khoa Nguyen, MD; (3) Thomas D. Chi, MD; (4) Elliott A. Feldman, PT; (5) Caitlin M. Marra, PT; (6) Lucy Hwang, MD; and (7) Patricia G. Read-Williams, MD. (Id. ¶ 3, Ex. 2 at 2-3; 7/29/19 Skinner Decl. (Dkt. # 25) ¶ 3, Ex. 2 at 9-10.) She did not, however, expressly designate her treating health care providers as “expert” witnesses; nor did she provide a summary of the opinions to which her treating medical providers were expected to testify.[9] (See 7/29/19 Skinner Decl. ¶ 3, Ex. 2 at 9-10.) On September 30, 2019, one day after the rebuttal expert deadline, Ms. Lister produced her second supplemental discovery responses, which included supplemental data and disclosures regarding Dr. Hwang. (10/29/19 Skinner Decl. ¶ 6, Ex. 5 at 9-10.)

         On October 29, 2019, Hyatt filed a motion to exclude Ms. Lister's expert witnesses. (See Def. MTE.) On October 31, 2019, Ms. Lister's counsel produced (1) Dr. Pritchett's statement of compensation; (2) Dr. Becker's testimony list and statement of compensation; and (3) Ms. Gill's testimony list and a compensation schedule. (11/8/19 Maxwell Decl. (Dkt. # 50) ¶ 3, Exs. A, B.)

         Hyatt never sought to depose any of Ms. Lister's experts or any of her treating health care providers. (See Plf. Resp. MTE (Dkt. # 49) at 2 (“Nor did [Hyatt] depose Dr. Becker.”), 3 (“[Hyatt] never sought to depose Ms. Gill.”), 4 (“[Hyatt] . . . could have deposed Dr. Pritchett.”); 7 (“[Hyatt] never saw the need to depose a single health care provider of [Ms. Lister].”); see also Def. Reply MTE (Dkt. # 54) at 2 (acknowledging that Hyatt “did not request to depose [Ms. Lister's] experts”).)

         In her response to Hyatt's motion to exclude expert testimony, Ms. Lister states that Joellen Gill, a human factors expert, Joel Pritchett, MD, an orthopedic surgeon, and Theodore Becker, PhD, who measures Ms. Lister's physical capacities, are the only experts who she has retained for purposes of litigation. (Plf. Resp. SJ at 1 n.1.) She also states that she does not intend to present expert testimony from Bryan Jorgensen, Rachel Steilberg, MS, CRC, CLCP, Jerry Hatchell, or David Spanier, MD. (Id.) Thus, the court limits its consideration of Hyatt's motion to exclude expert testimony to the testimony of Ms. Gill, Dr. Pritchett, Dr. Becker, and Ms. Lister's treating health care providers, and denies as moot Hyatt's motion concerning Mr. Jorgensen, Ms. Steilberg, Mr. Hatchett, and Dr. Spanier.

         The parties also filed several motions for summary judgment or partial summary judgment. On July 11, 2019, Ms. Lister filed a motion for summary judgment concerning several of Hyatt's affirmative defenses. (See 1st Plf. PSJM.) On October 15, 2019, the court entered a ruling on Ms. Lister's motion which denied the motion in part. (See 10/15/19 Order.) Pursuant to Federal Rule of Civil Procedure 56(d), the court deferred ruling on Ms. Lister's motion for summary judgment on Hyatt's fifth, seventh, ninth, and twelfth affirmative defenses. (Id. at 10-15, 19.) Following the close of discovery, Hyatt filed a supplemental response to Ms. Lister's motion concerning these affirmative defenses and Ms. Lister filed a supplemental reply. (See Def. Supp. Resp. PSJ; Plf. Supp. Reply PSJ (Dkt. # 39).) The court is now ready to issue its final summary judgment ruling on Hyatt's fifth, seventh, ninth, and twelfth affirmative defenses.

         In addition, on October 17, 2019, Ms. Lister filed a second motion for partial summary judgment. (See 2d Plf. PSJM.) In her second motion, Ms. Lister asks the court to conclude as a matter of law that she was either a business invitee or public invitee when she slipped and fell in Hyatt's lobby on June 15, 2017. (See generally id.) On the same day, Hyatt filed a motion for summary judgment asking the court to conclude as a matter of law that Ms. Lister was a licensee at the time of her fall and to grant summary judgment to Hyatt on grounds that it did not breach a duty to Ms. Lister.[10] (See Def. MSJ at 9-14.) The court now considers the parties' pending motions

         III. ANALYSIS

         The court addresses Hyatt's motion to exclude expert testimony first. (See Def. MTE.) The court then addresses the remainder Ms. Lister's first motion for partial summary judgment on Hyatt's affirmative defenses. (See 1st Plf. PSJM; see also 10/15/19 Order.) Finally, the court will address Ms. Lister's second motion for partial summary judgment on her status as either a business or public invitee (see 2d Plf. PSJM) and Hyatt's motion for summary judgment (see Def. MSJ.)

         A. Hyatt's Motion to Exclude Expert Testimony

         Hyatt advances several arguments for excluding the testimony of Ms. Lister's expert witnesses and any expert testimony from her treating medical providers. (See generally Def. MTE.) First, Hyatt argues that Ms. Lister failed to abide by Federal Rule of Civil Procedure 26(a)(2)(B)'s disclosure requirements for the expert witnesses she retained for purposes of testifying at trial. (See Id. at 3-6 (relying upon Fed.R.Civ.P. 26(a)(2)(B)).) Second, Hyatt argues that Ms. Lister failed to abide by Rule 26(a)(2)(C)'s disclosure requirements for expert testimony from her treating medical providers. (See Id. at 6-7 (relying upon Fed.R.Civ.P. 26(a)(2)(B)).) Third, Hyatt asserts that the supplemental materials Ms. Lister provided regarding Dr. Hwang are improper because the materials do not relate to rebuttal opinions pursuant to Rule 26(a)(2)(D)(ii). (See Id. at 7 (relying upon Fed.R.Civ.P. 26(a)(2)(D)(ii)).) Finally, Hyatt argues that the opinions of Dr. Becker and Ms. Gill should be excluded as either not relevant or not reliable under Federal Rule of Evidence 702.[11] (See Id. at 7-12 (relying upon Fed.R.Evid. 702).) Ms. Lister opposes Hyatt's motion to exclude. (See generally Plf. Resp. MTE.) The court now considers Hyatt's motion.

         1. The Adequacy of Ms. Lister's Expert Disclosures under Rule 26(a)(2)(B)

         Rule 26(a)(2)(B) provides, in relevant part, that the disclosure of an expert witness “must be accompanied by a written report-prepared and signed by the witness.” Fed.R.Civ.P. 26(a)(2)(B). The rule also describes in detail the written report's required contents, which include:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or ...

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