United States District Court, W.D. Washington, Seattle
ORDER ON MOTIONS FOR SUMMARY JUDGMENT AND TO EXCLUDE
L. ROBART United States District Judge
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,
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.
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.”) 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.)
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.)
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
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
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.)
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.)
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.)
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,  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.”) 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.”).)
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.”) 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.)
Taggart-Hugo testified as follows:
Q: Did anybody tell you about the spill on the floor of the
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
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?
(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. (Bloom Dep. at 17:23-20:24.)
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.)
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.)
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
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.)
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.)
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. (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.)
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.
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”).)
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
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
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. (See Def. MSJ at
9-14.) The court now considers the parties' pending
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.)
Hyatt's Motion to Exclude Expert Testimony
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. (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.
The Adequacy of Ms. Lister's Expert Disclosures under
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
(iii) any exhibits that will be used to summarize or ...