Lister v. Hyatt Corporation, No. 2:2018cv00961 - Document 56 (W.D. Wash. 2019)

Court Description: ORDER granting in part and denying in part Plaintiff Kathryn Lister's 22 Motion for Partial Summary Judgment; granting in part and denying in part Defendant's 40 Motion to Exclude Expert Testimony; granting Plaintiff's 32 Motion for Partial Summary Judgment on her status as an invitee; denying Defendants' 30 Motion for Summary Judgment. Signed by Judge James L. Robart. (PM)

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Lister v. Hyatt Corporation Doc. 56 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 KATHRYN LISTER, CASE NO. C18-0961JLR ORDER ON MOTIONS FOR SUMMARY JUDGMENT AND TO EXCLUDE EXPERT WITNESSES Plaintiff, 11 v. 12 13 HYATT CORPORATION, Defendant. 14 15 16 I. INTRODUCTION Before the court are four motions: (1) Plaintiff Kathryn Lister’s motion for partial 17 summary judgment on certain affirmative defenses (1st Plf. PSJM (Dkt. # 22)); (2) 18 Defendant Hyatt Corporation’s (“Hyatt”) motion for summary judgment on Ms. Lister’s 19 claims (Def. MSJ (Dkt. # 30)); (3) Ms. Lister’s motion for partial summary judgment on 20 her status as an invitee (2d Plf. PSJM (Dkt. # 32)); and (4) Hyatt’s motion to exclude 21 expert testimony (Def. MTE (Dkt. # 40)). The court has reviewed the motions, the 22 parties’ submissions filed in support of and in opposition to the motions, the relevant ORDER - 1 Dockets.Justia.com 1 portions of the record, and the applicable law. Being fully advised, 1 the court (1) 2 GRANTS in part and DENIES in part Ms. Lister’s motion for summary judgment on 3 certain affirmative defenses; (2) GRANTS in part and DENIES in part Hyatt’s motion to 4 exclude expert testimony; (3) GRANTS Ms. Lister’s motion for partial summary 5 judgment on her status as an invitee; and (4) DENIES Hyatt’s motion for summary 6 judgment. 7 8 II. A. BACKGROUND 2 Factual Background 9 This matter arises from a slip and fall at the Hyatt Regency Bellevue in Bellevue, 10 Washington, which is owned by Hyatt. (See Compl. (Dkt. # 1-2) ¶¶ 2.1-2.8.) Ms. Lister 11 alleges that, on June 15, 2017, she slipped and fell in vomit near the entrance to the 12 women’s restroom next to Hyatt’s lobby. (See id.) Ms. Lister alleges she incurred 13 injuries from the fall. (See id. ¶ 3.4.) 14 // 15 1 16 17 18 19 20 21 22 Ms. Lister requests oral argument on her motion for partial summary judgment on her status as an invitee (see 2d Plf. PSJM at 1) and Hyatt’s motion for summary judgment (Plf. Resp. SJ (Dkt. # 45) at 1). Hyatt does not request oral argument on any of the motions. (Def. Supp. Resp. PSJ (Dkt. # 36) at 1; Def. MTE at 1; 2d Def. Resp. PSJ (Dkt. # 46) at 1; Def. MSJ at 1.) Because oral argument would not assist the disposition of these motions, the court denies Ms. Lister’s requests. See Local Rules W.D. Wash. LCR 7(b)(4). 2 In evaluating relevant evidence for purposes of this motion for summary judgment, the court is guided by the following principles. The court does not make credibility determinations or weigh conflicting evidence, but rather views all evidence and draws all inferences in the light most favorable to the non-moving party. T.W. Elec. Serv., Inc., v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630-31 (9th Cir. 1987) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986)); see also Hrdlicka v. Reniff, 631 F.3d 1044, 1048, 1051 (9th Cir. 2011). The court, however, can rely on the indisputable portions of videotape submitted as evidence. See Scott v. Harris, 550 U.S. 372, 380-01 (2007). ORDER - 2 1 On June 15, 2017, shortly before midnight, Ms. Lister went to the 13 Coins 2 Restaurant in Bellevue, Washington. (See 10/17/19 Skinner Decl. (Dkt. # 31) ¶ 2, Ex. 1 3 (“Lister Dep.”) 3 at 25:1-20 (indicating that Ms. Lister only recalls the time she arrived at 4 13 Coins from a recent review of Hyatt’s security video); 11/1/19 Graham Decl. (Dkt. 5 # 44) ¶¶ 2-3, Exs. 1-2 (attaching copies of the June 15, 2017, Hyatt Regency Bellevue 6 security video) (hereinafter, “Video”); see also Def. MSJ at 3 (citing Compl. ¶ 2.2) 7 (indicating the date of Ms. Lister’s visit to 13 Coins was June 15, 2017).) Shortly after 8 11:55 p.m., Ms. Lister slipped and fell in vomit that was on the floor of Hyatt’s lobby, 9 which adjoins 13 Coins. (See Lister Dep. at 36:25-37:11; see also Video at 11:55.) 10 On the night of her fall, Ms. Lister took an elevator from the parking garage 11 directly into 13 Coins. (Lister Dep. at 25:21-26:1; 29:4-8.) She did not pass through 12 Hyatt to get to the restaurant. (See id.) A pair of interior doors connects Hyatt’s lobby 13 and 13 Coins. (See Lister Dep. at 32:4-12.) On the night of Ms. Lister’s fall, the double 14 doors between 13 Coins and Hyatt’s lobby were wide open. (Id. at 32:6-9, 13-16.) 15 Hyatt produced a copy of the security video from the lobby area on the night of 16 June 15, 2017. (See Video.) At approximately 11:25 p.m., the video depicts two women 17 walking from 13 Coins into Hyatt’s lobby. (See id.) The two women proceed down the 18 corridor adjacent to Hyatt’s lobby, and one of the women appears to vomit on the tile 19 20 3 21 22 Portions of Ms. Lister’s deposition appear in other places on the court’s docket. (See, e.g., 10/17/19 Graham Decl. (Dkt. # 33) ¶ 4, Ex. B; 10/22/19 Skinner Decl. (Dkt. ## 37, 38 (praecipe)) ¶ 2, Ex. 1.) Irrespective of where Ms. Lister’s deposition is found on the docket, the court will cite to this deposition as “Lister Dep.” ORDER - 3 1 flooring in the area near the restroom where Ms. Lister eventually slips and falls. (See 2 id.; Lister Dep. at 37:36:19-37:11.) 3 At approximately 11:36 p.m., the video depicts a security guard, who was 4 identified through discovery as Kyle Crandall, walking down the corridor adjacent to 5 Hyatt’s lobby and the area where the woman vomited. (See Video; see generally 6 10/17/19 Skinner Decl. ¶ 6, Ex. 5 (“Crandall Dep.”).) Mr. Crandall continues past the 7 area of contamination and appears to look down at the ground near the end of the 8 hallway. (See Video.) The video depicts Mr. Crandall walking back through the area 9 near the vomit again at approximately 11:41 p.m. (See id.) 10 Just before 11:55 p.m., the video depicts Ms. Lister leaving the 13 Coins 11 Restaurant and walking down the corridor adjacent to Hyatt’s lobby toward Hyatt’s 12 restrooms. (See id.) Ms. Lister testified that she needed to use the restroom and chose to 13 use the restroom near Hyatt’s lobby because she knew where it was located. (Lister Dep. 14 at 31:7-32:16.) Just after 11:55 p.m., the video depicts Ms. Lister slipping on Hyatt’s tile 15 flooring where one of the two women at the beginning of the video appeared to vomit. 16 (See Video.) Ms. Lister did not see the vomit on the tile flooring prior to her fall. (Lister 17 Dep. at 44:1-5.) Prior to her fall, she was looking up for the restroom sign. (Id. at 39:20- 18 40:6.) She only realized that there was vomit on the floor after she fell. (Id. at 43:15-25.) 19 Approximately 30 minutes passed between what appears to be the vomiting incident on 20 the video and Ms. Lister’s slip and fall. (See Video.) 21 22 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. ORDER - 4 1 (See id.) Again, he appears to look down at the ground in the hallway. (See id.) Mr. 2 Crandall testifies that he saw the vomit on the floor outside the restroom and reported it 3 “[a] little before midnight.” (Crandall Dep. at 10:20-25.) In his subsequent incident 4 report, Mr. Crandall noted that, as he was “walking near the level one bathroom,” he 5 “walked through a puddle of vomit” and “immediately” reported the spill. (Crandall 6 Dep., Ex. 1 (attaching Incident Report).) Mr. Crandall testified that “after watching the 7 video,” he believes that he did not see the vomit until after Ms. Lister slipped and fell. 8 (Id. at 24:1-25.) He testified that he would have called his dispatch or the “central 9 communications center” on his radio, reported the spill, and asked someone to come and 10 clean it up. (Id. at 12:2-8; 11:20-13:18.) Mr. Crandall testified that his dispatch would 11 have called Hyatt’s front desk to report the problem. (Id.) 12 Following her fall, Ms. Lister returned to the 13 Coins Restaurant. (See Video.) 13 While she was at 13 Coins, Mr. Crandall talked with her and “took a report” of her fall. 14 (Crandell Dep. at 17:15-19:12; 25:13-19; & Ex. 1.) Mr. Crandall told Ms. Lister that he 15 wanted to call an aid car for her, but she declined. (Id. at 18:7-25.) 16 Mr. Crandall works as a security guard for Kemper Freeman Properties 17 (“Kemper”). (Id. at 6:7-17.) Alex Dantes, who was Hyatt’s Director of Operations at the 18 time of Ms. Lister’s accident, 4 testified that Kemper “[p]rovided security, filled out 19 incident reports, reviewed cameras,” and performed “general security” for Hyatt. 20 4 21 22 (See 2d Plf. PSJM at 6.) Hyatt does not dispute that Mr. Dantes was the Director of Operations at the time of Ms. Lister’s accident. (See 2d Def. Resp. PSJ at 8 (describing Mr. Dantes as Hyatt’s “former Director of Operations”); Def. MTE at 11 (describing Mr. Dantes as Hyatt’s “former manager”).) ORDER - 5 1 (11/1/19 Graham Decl. ¶ 5, Ex. 4 (“Dantes Dep.”) 5 at 22:5-8.) He also testified that if a 2 Kemper security guard “walked by and saw something on the floor,” Hyatt expected the 3 security guard to notify Hyatt so that a Hyatt employee could clean it up. (Id. at 4 22:20-23:1.) Mr. Dantes also testified that one of the duties of a Kemper security guard 5 is to take incident reports for accidents that happen at Hyatt’s facility. (Id. at 35:13-20 6 (“That’s what we hire [Kemper] for is to provide security and document things of 7 significance for the hotel.”).) 6 8 9 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 10 Dep.”) 7 at 56:16-21; id. ¶ 4, Ex. 3 (“Taggart-Hugo Dep.”) at 32:19-33:15; id. ¶ 5, Ex. 4 11 (“Bloom Dep.”) at 5:25-64, 6:12-22.) Hyatt insists no one reported the spill until Ms. 12 Lister’s fall. (See Def. MSJ at 4 (“[Ms. Taggart-Hugo] does not recall anyone reporting 13 the presence of a spill near the restrooms until after [Ms. Lister’s] fall.”).) However, as 14 15 16 17 5 Portions of Mr. Dantes’s deposition appear in other places on the court’s docket. (See, e.g., 10/17/19 Graham Decl. ¶ 5, Ex. C; 10/17/19 Graham Decl. ¶ 5, Ex. C.) Irrespective of where Mr. Dantes’s deposition is found on the docket, the court will cite to this deposition as “Dantes Dep.” 6 18 19 20 21 22 Without reference to any evidence, Hyatt asserts that Mr. Crandall was “not an . . . agent of the Hyatt.” (Def. MSJ at 5, n.1.) The statement of a lawyer in a brief is not “evidence” and the court will not treat it as such when considering summary judgment. Barcamerica Int’l USA Tr. v. Tyfield Importers, Inc., 289 F.3d 589, 593 (9th Cir. 2002) (“[T]he arguments and statements of counsel ‘are not evidence and do not create issues of material fact capable of defeating an otherwise valid motion for summary judgment.’”) (quoting Smith v. Mack Trucks, 505 F.2d 1248, 1249 (9th Cir.1974) (per curiam)). 7 Portions of Mr. Clark’s deposition appear in other places on the court’s docket. (See, e.g., 11/1/19 Graham Decl. ¶ 6, Ex. 5.) Irrespective of where Mr. Clark’s deposition is found on the docket, the court will cite to this deposition as “Clark Dep.” ORDER - 6 1 the court has previously noted, Ms. Taggart-Hugo’s deposition testimony is not definitive 2 and does not necessarily support that conclusion. (See 10/15/19 Order (Dkt. # 29) at 2-3.) 3 Ms. Taggart-Hugo testified as follows: 4 5 6 7 8 9 10 11 12 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. 13 (Hugo-Taggart Dep. at 30:22-31:19.) Mr. Bloom has no recollection of or knowledge 14 concerning any of the events surrounding Ms. Lister’s June 15, 2018, fall. 8 (Bloom Dep. 15 at 17:23-20:24.) 16 Hyatt’s Federal Rule of Civil Procedure 30(b)(6) deponent, Sean Clark, testified 17 that both Hyatt’s lobby and the restrooms adjacent to the lobby are open to the public. 18 (Clark Dep. at 42:4-6; 43:1-3.) He testified that, in addition to 13 Coins, other businesses 19 20 21 22 8 While testifying on behalf of Hyatt as its Federal Rule of Civil Procedure 30(b)(6) deponent, Sean Clark identified Mr. Bloom as one of the individuals who walked past the vomit on Hyatt’s tile flooring near the lobby restrooms shortly before Ms. Lister slipped and fell. (Clark Dep. at 13:24-14:23.) However, Mr. Bloom has no recollection of any pertinent events surrounding Ms. Lister’s fall. (See 10/17/19 Skinner Decl. ¶ 5, Ex. 4 (“Bloom Dep.”) at 17:2318:18, 19:12-20:12, 31:21-24.) ORDER - 7 1 also operate adjacent to Hyatt’s lobby area, including Fonte Coffee and Eques, which is 2 Hyatt’s restaurant on the second floor. (Id. at 41:9-15.) He testified that he is aware that 3 people who are not staying overnight use Hyatt’s restrooms and that no one is or ever has 4 been excluded from using Hyatt’s restrooms unless they have been formally trespassed. 5 (Id. at 42:10-21.) He testified that there are no signs anywhere on the premises indicating 6 that only Hyatt’s guests may use Hyatt’s restrooms. (Id. at 42:22-25.) 7 Mr. Dantes also testified that people are never excluded from using the bathrooms 8 in Hyatt’s lobby and that anyone can use the bathrooms unless they have been 9 “trespassed” or are “visibly not doing any kind of business within the hotel.” (Dantes 10 Dep. at 45:10-16.) Mr. Dantes testified that Hyatt permitted guests of the 13 Coins 11 restaurant to use Hyatt’s restrooms, and he personally saw 13 Coins’ guests leave the bar 12 and use Hyatt’s restrooms. (Id. at 49:7-18.) Mr. Dantes also testified that at the time of 13 Ms. Lister’s accident, 13 Coins restaurant provided 24-hour food service and overnight 14 room service for Hyatt’s guests. (Id. at 45:17-24.) Finally, he testified that Hyatt 15 received a portion of the proceeds from these 13 Coins’ food and room service sales. (Id. 16 at 45:11-48:21.) 17 B. 18 Procedural Background On or about May 31, 2018, Ms. Lister filed a lawsuit against Hyatt in King County 19 Superior Court. (See Compl.) On June 28, 2018, Hyatt removed Ms. Lister’s lawsuit to 20 federal court. (See Not. of Removal (Dkt. # 1).) The court issued a scheduling order 21 setting July 31, 2019, as the deadline for expert disclosures and September 30, 2019, as 22 the discovery cut-off. (Sched. Order (Dkt. # 19) at 1.) On July 11, 2019, at the request of ORDER - 8 1 both parties, the court extended the deadline for expert witness disclosures from July 31, 2 2019, to August 30, 2019. (7/11/19 Order (Dkt. # 21) at 2.) Rebuttal expert disclosures 3 were due on September 29, 2019—30 days after the expert witness disclosure deadline. 4 See Fed. R. Civ. P. 26(a)(2)(C)(ii) (“. . . [T]he disclosure must be made . . . if the 5 evidence is intended solely to contradict or rebut evidence on the same subject matter 6 identified by another party under Rule 26(a)(20(B) or (C) [which relate to expert witness 7 disclosures], within 30 days after the other party’s disclosure.”). 8 9 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 10 witness. (10/29/19 Skinner Decl. (Dkt. # 41) ¶ 3, Ex. 2 at 4-5.) On November 5, 2018, 11 Ms. Lister served her responses to Hyatt’s first written discovery requests. (See id. ¶ 4.) 12 With her responses, she produced Dr. Becker’s curriculum vitae (“CV”), including his 13 publication list, and his expert report. (See id. ¶ 4, Ex. 3.) 14 On August 1, 2019, Ms. Lister served her first supplemental discovery responses 15 and produced (1) an expert report and a CV for Joellen Gill, and (2) an expert report and 16 a CV, which included a list of publications, for James Pritchett, MD. (Id. ¶ 5, Ex. 4 at 20, 17 31-44, 53-84.) 18 In both her initial disclosures and subsequent discovery responses, Ms. Lister 19 identified several treating medical providers as witnesses who may have knowledge 20 concerning the nature and extent of her injuries, treatment, and causation, including: 21 (1) Cory Heidleberger, MD; (2) Khoa Nguyen, MD; (3) Thomas D. Chi, MD; (4) Elliott 22 A. Feldman, PT; (5) Caitlin M. Marra, PT; (6) Lucy Hwang, MD; and (7) Patricia G. ORDER - 9 1 Read-Williams, MD. (Id. ¶ 3, Ex. 2 at 2-3; 7/29/19 Skinner Decl. (Dkt. # 25) ¶ 3, Ex. 2 at 2 9-10.) She did not, however, expressly designate her treating health care providers as 3 “expert” witnesses; nor did she provide a summary of the opinions to which her treating 4 medical providers were expected to testify. 9 (See 7/29/19 Skinner Decl. ¶ 3, Ex. 2 at 5 9-10.) On September 30, 2019, one day after the rebuttal expert deadline, Ms. Lister 6 produced her second supplemental discovery responses, which included supplemental 7 data and disclosures regarding Dr. Hwang. (10/29/19 Skinner Decl. ¶ 6, Ex. 5 at 9-10.) 8 On October 29, 2019, Hyatt filed a motion to exclude Ms. Lister’s expert 9 witnesses. (See Def. MTE.) On October 31, 2019, Ms. Lister’s counsel produced (1) Dr. 10 Pritchett’s statement of compensation; (2) Dr. Becker’s testimony list and statement of 11 compensation; and (3) Ms. Gill’s testimony list and a compensation schedule. (11/8/19 12 Maxwell Decl. (Dkt. # 50) ¶ 3, Exs. A, B.) 13 Hyatt never sought to depose any of Ms. Lister’s experts or any of her treating 14 health care providers. (See Plf. Resp. MTE (Dkt. # 49) at 2 (“Nor did [Hyatt] depose Dr. 15 Becker.”), 3 (“[Hyatt] never sought to depose Ms. Gill.”), 4 (“[Hyatt] . . . could have 16 deposed Dr. Pritchett.”); 7 (“[Hyatt] never saw the need to depose a single health care 17 9 18 19 20 21 22 For example, Ms. Lister states that “Doctors Heidelberger and Nguyen provided treatment” to her “and are believed to have knowledge regarding the nature of [her] injuries.” (See 7/29/19 Skinner Decl. ¶ 3, Ex. 2 at 9.) She states that “Dr. Chi is the orthopedic surgeon who repaired [her] left hip fracture,” and “he is believed to have knowledge regarding the nature and causation of [her] injury as well as her medical treatment and prognosis.” (Id.) She relates that “Dr. Hwang is [her] primary care physician” and “is believed to have knowledge regarding the nature and extent of [her] injuries and their impact on [her] activities of daily living.” (Id. at 10.) Finally, Ms. Lister states that “Dr. Read-Williams provided treatment to [her] after she suffered a fall caused by limited mobility in her left hip,” and Dr. Read-Williams “is believed to have knowledge regarding the nature and extent of [her] injuries and their impact on [her] activities of daily living.” (Id.) ORDER - 10 1 provider of [Ms. Lister].”); see also Def. Reply MTE (Dkt. # 54) at 2 (acknowledging 2 that Hyatt “did not request to depose [Ms. Lister’s] experts”).) 3 In her response to Hyatt’s motion to exclude expert testimony, Ms. Lister states 4 that Joellen Gill, a human factors expert, Joel Pritchett, MD, an orthopedic surgeon, and 5 Theodore Becker, PhD, who measures Ms. Lister’s physical capacities, are the only 6 experts who she has retained for purposes of litigation. (Plf. Resp. SJ at 1 n.1.) She also 7 states that she does not intend to present expert testimony from Bryan Jorgensen, Rachel 8 Steilberg, MS, CRC, CLCP, Jerry Hatchell, or David Spanier, MD. (Id.) Thus, the court 9 limits its consideration of Hyatt’s motion to exclude expert testimony to the testimony of 10 Ms. Gill, Dr. Pritchett, Dr. Becker, and Ms. Lister’s treating health care providers, and 11 denies as moot Hyatt’s motion concerning Mr. Jorgensen, Ms. Steilberg, Mr. Hatchett, 12 and Dr. Spanier. 13 The parties also filed several motions for summary judgment or partial summary 14 judgment. On July 11, 2019, Ms. Lister filed a motion for summary judgment concerning 15 several of Hyatt’s affirmative defenses. (See 1st Plf. PSJM.) On October 15, 2019, the 16 court entered a ruling on Ms. Lister’s motion which denied the motion in part. (See 17 10/15/19 Order.) Pursuant to Federal Rule of Civil Procedure 56(d), the court deferred 18 ruling on Ms. Lister’s motion for summary judgment on Hyatt’s fifth, seventh, ninth, and 19 twelfth affirmative defenses. (Id. at 10-15, 19.) Following the close of discovery, Hyatt 20 filed a supplemental response to Ms. Lister’s motion concerning these affirmative 21 defenses and Ms. Lister filed a supplemental reply. (See Def. Supp. Resp. PSJ; Plf. Supp. 22 ORDER - 11 1 Reply PSJ (Dkt. # 39).) The court is now ready to issue its final summary judgment 2 ruling on Hyatt’s fifth, seventh, ninth, and twelfth affirmative defenses. 3 In addition, on October 17, 2019, Ms. Lister filed a second motion for partial 4 summary judgment. (See 2d Plf. PSJM.) In her second motion, Ms. Lister asks the court 5 to conclude as a matter of law that she was either a business invitee or public invitee 6 when she slipped and fell in Hyatt’s lobby on June 15, 2017. (See generally id.) On the 7 same day, Hyatt filed a motion for summary judgment asking the court to conclude as a 8 matter of law that Ms. Lister was a licensee at the time of her fall and to grant summary 9 judgment to Hyatt on grounds that it did not breach a duty to Ms. Lister. 10 (See Def. MSJ 10 at 9-14.) The court now considers the parties’ pending motions 11 III. 12 ANALYSIS The court addresses Hyatt’s motion to exclude expert testimony first. (See Def. 13 MTE.) The court then addresses the remainder Ms. Lister’s first motion for partial 14 summary judgment on Hyatt’s affirmative defenses. (See 1st Plf. PSJM; see also 15 10/15/19 Order.) Finally, the court will address Ms. Lister’s second motion for partial 16 summary judgment on her status as either a business or public invitee (see 2d Plf. PSJM) 17 and Hyatt’s motion for summary judgment (see Def. MSJ.) 18 // 19 // 20 21 22 10 Hyatt also asks the court to grant summary judgment to Hyatt on any loss of earnings damages claimed by Ms. Lister. (See id. at 14-15.) However, in her response, Ms. Lister states that she “does not intend to present a claim for lost wages, past or future.” (Plf. Resp. SJ at 3 n.1.) Accordingly, the court denies as moot this portion of Hyatt’s summary judgment motion and does not address it further. ORDER - 12 1 A. Hyatt’s Motion to Exclude Expert Testimony 2 Hyatt advances several arguments for excluding the testimony of Ms. Lister’s 3 expert witnesses and any expert testimony from her treating medical providers. (See 4 generally Def. MTE.) First, Hyatt argues that Ms. Lister failed to abide by Federal Rule 5 of Civil Procedure 26(a)(2)(B)’s disclosure requirements for the expert witnesses she 6 retained for purposes of testifying at trial. (See id. at 3-6 (relying upon Fed. R. Civ. P. 7 26(a)(2)(B)).) Second, Hyatt argues that Ms. Lister failed to abide by Rule 26(a)(2)(C)’s 8 disclosure requirements for expert testimony from her treating medical providers. (See 9 id. at 6-7 (relying upon Fed. R. Civ. P. 26(a)(2)(B)).) Third, Hyatt asserts that the 10 supplemental materials Ms. Lister provided regarding Dr. Hwang are improper because 11 the materials do not relate to rebuttal opinions pursuant to Rule 26(a)(2)(D)(ii). (See id. 12 at 7 (relying upon Fed. R. Civ. P. 26(a)(2)(D)(ii)).) Finally, Hyatt argues that the 13 opinions of Dr. Becker and Ms. Gill should be excluded as either not relevant or not 14 reliable under Federal Rule of Evidence 702. 11 (See id. at 7-12 (relying upon Fed. R. 15 Evid. 702).) Ms. Lister opposes Hyatt’s motion to exclude. (See generally Plf. Resp. 16 MTE.) The court now considers Hyatt’s motion. 17 18 19 20 21 22 11 In its reply brief, Hyatt also complains that Ms. Lister’s response to Hyatt’s motion to exclude her expert witnesses is overlong at 18 pages. (Def. Reply MTE at 2.) Hyatt argues that Ms. Lister should have limited her response to 12 pages and asks the court to decline to consider the content to Ms. Lister’s response after page 12. (Id. (citing Local Rules W.D. Wash. LCR 7(d)(3), 7(e)(4), 7(e)(5)).) Whether the court considers material that falls outside of the page limits is within the court’s discretion. See Local Rules W.D. Wash. LCR 7(e)(6) (“The court may refuse to consider any text, including footnotes, which is not included within the page limits.”). Here, the court declines to disregard the last six pages of Ms. Lister’s responsive memorandum. Nevertheless, the court cautions counsel that any further violations of the Local Rules may result in the imposition of sanctions. ORDER - 13 1 1. The Adequacy of Ms. Lister’s Expert Disclosures under Rule 26(a)(2)(B) 2 Rule 26(a)(2)(B) provides, in relevant part, that the disclosure of an expert witness 3 “must be accompanied by a written report—prepared and signed by the witness.” Fed. R. 4 Civ. P. 26(a)(2)(B). The rule also describes in detail the written report’s required 5 contents, which include: 6 7 8 9 10 (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 support them; (iv) the witness’s qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case. 11 Fed. R. Civ. P. 26(a)(2)(B)(i)-(vi). Rule 37(c)(1) provides that “[i]f a party fails to 12 provide information or identify a witness as required by Rule 26(a) or (e), the party is not 13 allowed to use that information or witness to supply evidence on a motion, at a hearing, 14 or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 15 37. “The determination of whether a failure to disclose is justified or harmless is 16 entrusted to the broad discretion of the district court.” S.F. Bay Area Rapid Transit Dist. 17 v. Spencer, No. 04-04632-SI, 2007 WL 421336, at *4 (N.D. Cal. Feb. 5, 2007); Auto. 18 Indus. Pension Tr. Fund v. Tractor Equip. Sales, Inc., 73 F. Supp. 3d 1173, 1181-82 19 (N.D. Cal. 2014), aff’d, 672 F. App’x 685 (9th Cir. 2016). 20 Hyatt argues that Ms. Lister failed to timely and fully comply with all the 21 disclosure requirements of Rule 26(a)(2)(B)(i)-(vi), and therefore the court should 22 ORDER - 14 1 exclude the testimony of the following expert witnesses: Ms. Gill, Dr. Pritchett, and Dr. 2 Becker. (Def. MTE at 3-6.) Ms. Lister’s counsel acknowledges that certain aspects of 3 her expert witness disclosures did not comply with Rule 26(a)(2)(B)(i)-(vi), but argues 4 that any error was harmless and, therefore, does not warrant the court’s imposition of 5 sanctions. (Plf. Resp. MTE at 7-8.) The court agrees with Ms. Lister. As discussed 6 below, although her expert witness disclosures were haphazard and incomplete, she 7 provided enough information to Hyatt early enough in the discovery period that any 8 deficiencies in her disclosures were harmless. 9 Ms. Lister identified Dr. Becker as a potential expert witness on September 26, 10 2018. (10/29/19 Skinner Decl. ¶ 3, Ex. 2 at 4-5.) On November 5, 2018, Ms. Lister 11 produced his CV, publication list, and his expert report. (See id. ¶ 4, Ex. 3.) Thus, Hyatt 12 had this information more than nine months before the August 30, 2019, expert witness 13 disclosure deadline. (See 7/11/19 Order at 2 (extending this deadline from July 31, 2019, 14 to August 30, 2019).) Nevertheless, Hyatt complains that Ms. Lister did not produce a 15 list of his previous testimony or a statement of compensation. (Def. MTE at 5); see also 16 Fed. R. Civ. P. 26(a)(2)(B)(v), (vi). Hyatt also argues that Dr. Becker’s report “does not 17 appear . . . [to] contain[] a full and complete statement of Dr. Becker’s opinions.” (Def. 18 MTE at 5.) 19 On August 1, 2019, 29 days prior to the expert disclosure deadline, Ms. Lister 20 identified Ms. Gill as an expert witness and produced Ms. Gills’ expert report and CV. 21 (10/29/19 Skinner Decl. ¶ 5, Ex. 4; see also 7/11/19 Order at 2.) Yet, Hyatt complains 22 that the disclosure does not contain a list of Ms. Gill’s previous testimony, a statement of ORDER - 15 1 compensation, or a list of the exhibits she intends to use at trial. (See Def. MTE at 6); see 2 also Fed. R. Civ. P. 26(a)(2)(B)(iii), (v), (vi). Hyatt also states that Ms. Gill’s report 3 contains an inadequate statement of the “facts and data” upon which she relied, because 4 the report only states that she “reviewed the initial file materials” provided by Ms. Lister. 5 (See Def. MTE at 6 (citing 10/29/19 Skinner Decl. ¶ 5, Ex. 4 at 32)); see also Fed. R. 6 Civ. P. 26(a)(2)(B)(ii). 7 On August 1, 2019, Ms. Lister identified Dr. Pritchett as an expert witness and 8 produced his report and CV. (10/29/19 Skinner Decl. ¶ 5, Ex. 4.) Hyatt argues that the 9 disclosure is insufficient because it lacks a statement of compensation, a statement of the 10 “facts and data” upon which he relies, and a list of the exhibits he intends to use at trial. 11 (Def. MTE at 6); see also Fed. R. Civ. P. 26(a)(2)(B)(ii), (iii), (vi). Hyatt also complains 12 that “it is unclear whether Dr. Pritchett examined [Ms. Lister].” (Def. MTE at 6.) Hyatt 13 also asserts that Dr. Pritchett’s report does not adequately explain his opinions or their 14 bases. (Id.) 15 Hyatt filed its motion to exclude Ms. Lister’s expert witnesses on October 29, 16 2019. (See Def. MTE.) As noted above, on October 31, 2019, Ms. Lister’s counsel 17 produced (1) Dr. Pritchett’s statement of compensation; (2) Dr. Becker’s testimony list 18 and statement of compensation; and (3) Ms. Gill’s testimony list and a compensation 19 schedule. (11/8/19 Maxwell Decl. ¶ 3, Exs. A, B.) 20 // 21 // 22 // ORDER - 16 1 Nowhere in its motion does Hyatt explain how the asserted failings in Ms. Lister’s 2 expert disclosures caused Hyatt any harm. 12 (See generally Def. MTE.) Indeed, Hyatt 3 never sought to depose even one of Ms. Lister’s expert witnesses. (See Def. Reply MTE 4 at 2.) Further, as Ms. Lister also points out, if Hyatt believed Ms. Lister’s expert 5 disclosures were inadequate, Hyatt could have inquired into the statements it believed 6 were inadequate within the discovery period. (See Plf. Resp. MTE at 9 (“[Hyatt never 7 asked [Ms. Lister] to provide [the missing materials] . . . .”).) Yet, Hyatt did not so 8 inquire—opting instead to bring the present motion after the discovery period expired. 9 Because Hyatt never inquired further during the discovery period or sought to depose 10 even one of these experts, the court finds that Ms. Lister’s failure to strictly comply with 11 the disclosure requirements of Rule 26(a)(2)(B) was harmless. See, e.g., Davis v. 12 Davison Hotel Co., LLC, No. CV 12–6327 CAS (AJWx), 2013 WL 3337669, at *2-3 13 (C.D. Cal. 2013) (declining to exclude witnesses who were not disclosed in Rule 26 14 initial disclosures because there was no “showing of surprise, prejudice, or other 15 unfairness”); Auto Indus. Pension Trust Fund, 73 F.Supp.3d at 1183 (holding that a 16 failure to disclose was harmless when the other party “easily could have” inquired more 17 into certain statements); Perez v. Auto Tech. Co., No. CV 13-06728 MMM (VBKx), 2015 18 19 20 21 22 12 Hyatt argues in its reply memorandum that it was harmed because “deposing an expert prior to the expert disclosure would be an unwise use of resources.” (Def. Reply MTE at 3.) Yet, Hyatt could have deposed any of the witnesses during the month between the August 30, 2019, expert disclosure deadline and the September 30, 2019, discovery cutoff. (See Sched. Order at 1; 7/11/19 Order at 2.) In any event, the court is unconvinced by Hyatt’s assertions of harm and further declines to consider an argument raised for the first in reply when Ms. Lister has no opportunity to respond. See United States v. Wright, 215 F.3d 1020, 1030 n.3 (9th Cir. 2000) (declining to consider arguments raised for the first time in a reply brief). ORDER - 17 1 WL 12745804, *4 (C.D. Cal. 2015) (holding failure to comply with Rule 26 harmless 2 when the other party could not “credibly assert it was unaware” of an expert’s expected 3 testimony); Estate of Gonzalez v. Hickman, No. ED CV 05-00660 MMM (RCx), 2007 4 WL 3237635, at *6 (C.D. Cal. 2007) (finding that “plaintiffs’ belated disclosure of 5 [expert] reports was harmless” because “their substance was available to defendants” at a 6 much earlier date); Dhaliwal v. Singh, No. 1:13-cv-00484-LJO-SKO, 2014 WL 2957310, 7 at *7 (E.D. Cal. 2014) (holding that a “technical violation of Rule 26” was harmless when 8 plaintiff was not diligent in seeking to take the deposition of a witness). Accordingly, the 9 court denies Hyatt’s motion to exclude Ms. Lister’s expert witnesses on this basis. 10 2. The Adequacy of Ms. Lister’s Expert Disclosures under Rule 26(a)(2)(C) 11 Hyatt argues that Ms. Lister failed to comply with the strictures of Rule 12 26(a)(2)(C) for disclosing any opinion testimony she may offer from her treating medical 13 providers. (Def. MTE at 6-7.) Although these witnesses are not required to produce 14 reports, Hyatt argues that under Rule 26(a)(2)(C), Ms. Lister is required to disclose (1) 15 “the subject matter on which the witness is expected to present evidence under Federal 16 Rules of Evidence 702, 703, or 705,” and (2) “a summary of the facts and opinions to 17 which the witness is expected to testify.” Fed. R. Civ. P. 26(a)(2)(C). As noted above, 18 although Ms. Lister disclosed the subject matters on which her disclosed treating medical 19 providers are expected to present evidence, she did not provide a summary of the 20 opinions these witnesses are expected to offer. (See 7/29/19 Skinner Decl. ¶ 3, Ex. 2 at 21 9-10.) Thus, Hyatt argues that the court should exclude the testimony of these witnesses 22 as experts “on causation, the reasonableness, necessity, and relatedness of [Ms. Lister’s] ORDER - 18 1 medical treatment, and on recommendations for future care or treatment.” (Def. MTE at 2 7.) 3 Rule 26(a)(2)(A) requires a party to “disclose to the other parties the identity of 4 any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 5 703, or 705.” Fed. R. Civ. P. 26(a)(2)(A). As noted above, Ms. Lister failed to expressly 6 identify her treating medical providers as expert witnesses. (See 7/29/19 Skinner Decl. 7 ¶ 3, Ex. 2 at 9-10.) Instead, Ms. Lister disclosed these witnesses as percipient fact 8 witnesses with knowledge of Ms. Lister’s injuries, treatment, and prognosis. (See id.); 9 see also Fed. R. Evid. 701(a) (“If a witness is not testifying as an expert, testimony in the 10 form of an opinion is limited to one that is . . . rationally based on the witness’s 11 perception.”). Although “other circuits have held that treating physicians are experts that 12 must be properly disclosed under . . . Rule . . . 26, . . . [the Ninth Circuit] has not.” 13 Hoffman v. Lee, 474 F. App’x 503, 505 (9th Cir. 2012) (internal citation omitted). So 14 long as these witnesses testify solely as percipient witnesses, Ms. Lister is not required to 15 disclose her treating medical providers as expert witnesses. See id. (“We hold that [the 16 doctor] testified only as a percipient witness and thus need not have been disclosed as an 17 expert.”). Further, a district court properly admits the testimony of a party’s treating 18 medical provider, even if the party has not disclosed the provider as an expert witness, so 19 long as each of the treating medical provider’s opinions “addresses his [or her] thoughts 20 on particular actions that he [or she] took in his [or her] treatment of [the party].” See id. 21 Thus, consistent with Hoffman, the court will permit Ms. Lister’s disclosed treating 22 medical providers to testify as percipient witnesses about their diagnosis and treatment of ORDER - 19 1 Ms. Lister and to any opinions formed during the course of treatment. See Haro v. 2 GGP-Tucson Mall LLC, No. CV-17-00285-TUC-JAS, 2019 WL 369269, at *4 (D. Ariz. 3 Jan. 30, 2019) (considering treating physicians as lay witnesses and allowing them to 4 “testify regarding their diagnosis and treatment” of the plaintiff); Walker v. Spina, No. 5 CIV 17-0991 JB/SCY, 2019 WL 145626, at *19 (D.N.M. Jan. 9, 2019) (“A treating 6 physician does not need to be certified as an expert witness and may testify as a lay 7 witness ‘if he or she testifies about observations based on personal knowledge, including 8 the treatment of the party.’”) (quoting Guerrero v. Meadows, 646 F. App’x 597, 602 9 (10th Cir. 2016)). 10 However, a physician’s testimony as a percipient witness does not extend to the 11 issue of causation. The Ninth Circuit has held that “a physician’s assessment of the cause 12 of an injury is expert testimony.” United States v. Urena, 659 F.3d 903, 908 (9th Cir. 13 2011) (citing United States v. Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005) (“Her 14 diagnosis of the injury itself . . . would be permissible lay testimony, but her statement 15 about the cause of the injury was, as she admitted, a ‘hypothesis.’ And the ability to 16 answer hypothetical questions is the essential difference between expert and lay 17 witnesses.” (internal quotation and alteration omitted)); Wills v. Amerada Hess Corp., 18 379 F.3d 32, 46 (2d Cir. 2004) (holding that, where the cause of an injury would not be 19 obvious to a lay juror, expert testimony is required)). 20 In sum, the court grants in part and denies in part Hyatt’s motion to exclude 21 opinion testimony from Ms. Lister’s disclosed treating medical providers. Although 22 these witnesses may not opine on matters unrelated to their diagnosis and treatment of ORDER - 20 1 Ms. Lister, including causation, these witnesses may testify as percipient witnesses 2 concerning their diagnosis and treatment of Ms. Lister and any opinions formed during 3 that course of treatment. 4 3. Supplemental Rebuttal Expert Disclosures 5 Hyatt argues that Ms. Lister’s disclosure of supplemental materials concerning Dr. 6 Hwang is inadequate because the supplemental materials do not constitute genuine 7 rebuttal opinions. (MTE at 7.) Further, Hyatt argues that the supplemental disclosures 8 were untimely because rebuttal expert witness disclosures were due on September 29, 9 2019, but Ms. Lister did not produce Dr. Hwang’s supplemental disclosure until 10 September 30, 2019. (Id.) 11 In her initial discovery responses, Ms. Lister disclosed that Dr. Hwang is her 12 primary care physician with “knowledge regarding the nature and extent of [Ms. Lister’s] 13 injuries and their impact on plaintiff’s activities of daily living.” (10/29/19 Skinner Decl. 14 ¶ 6, Ex. 5 at 8.) On September 30, 2019, Ms. Lister supplemented her response to state 15 as follows: 16 Dr. Hwang did not have any concerns about Plaintiff being at risk of falling prior to the surgery on June 16, 2017, that she underwent as a result of the hip fracture she sustained in her fall at the Hyatt on June 15th, 2017. Prior to this fall, and subsequent surgery, Dr. Hwang did not see that Plaintiff had problems with her gait that presented an increased risk of falls or problems walking. Dr. Hwang does not have any concerns that Plaintiff has a neurological disorder. Dr. Hwang recently saw Plaintiff and Dr. Hwang is now concerned about Plaintiff’s risk of falls since Plaintiff reports that she has fallen four times since her surgery in June of 2017. 17 18 19 20 21 (Id. ¶ 6, Ex. 5 at 9-10.) 22 // ORDER - 21 1 The court agrees with Hyatt that Ms. Lister’s supplemental discovery response 2 concerning Dr. Hwang does not describe rebuttal expert opinions. However, consistent 3 with the ruling above, Dr. Hwang is permitted to testify as a percipient witness about her 4 diagnosis and treatment of Ms. Lister and to any opinions formed during the course of 5 treatment. See supra § III.A.2. Ms. Lister’s supplemental disclosure concerning Dr. 6 Hwang is consistent with those parameters. Further, the supplemental disclosure was 7 timely because it occurred on September 30, 2019, which was the discovery cutoff. (See 8 Sched. Order at 1.) Finally, because Hyatt never sought to depose Dr. Hwang, or any of 9 Ms. Lister’s other medical providers or medical experts, the court is not persuaded that 10 Hyatt suffered any prejudice by the production of this additional disclosure on the last 11 day of the discovery period. Accordingly, the court denies Hyatt’s motion to exclude Dr. 12 Hwang’s testimony. However, Dr. Hwang must conform her testimony to the parameters 13 of the court’s ruling concerning Ms. Lister’s treating medical providers, testify strictly as 14 a percipient witness with knowledge concerning the diagnosis and treatment of Ms. 15 Lister, and limit her opinion testimony to those opinions formed during her treatment of 16 Ms. Lister. See supra § III.A.2. 17 4. The Relevance and Reliability of Dr. Becker’s and Ms. Gill’s Testimony 18 “Before admitting expert testimony into evidence, the district court must perform a 19 ‘gatekeeping role’ of ensuring that the testimony is both ‘relevant’ and ‘reliable’ under 20 // 21 // 22 // ORDER - 22 1 Federal Rule of Evidence 702.” 13 United States v. Ruvalcaba-Garcia, 923 F.3d 1183, 2 1188 (9th Cir. 2019) (citing Daubert v. Merrell Dow Pharm., 509 U.S. 597 (1993)). 3 “Relevancy simply requires that ‘the evidence logically advance a material aspect of the 4 party’s case.’” Id. (citing Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457, 463 (9th 5 Cir. 2014) (citation and internal alterations omitted)). Reliability “requires that the 6 expert’s testimony have ‘a reliable basis in the knowledge and experience of the relevant 7 discipline.’” Id. (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999)). 8 The test for reliability “‘is not the correctness of the expert’s conclusions but the 9 soundness of his methodology,’ and when an expert meets the threshold established by 10 Rule 702, the expert may testify and the fact finder decides how much weight to give that 11 testimony.” Pyramid Techs., Inc. v. Hartford Cas. Ins. Co., 752 F.3d 807, 814 (9th Cir. 12 2014) (quoting Primiano v. Cook, 598 F.3d 558, 564 (9th Cir. 2010), as amended (Apr. 13 27, 2010)). The reliability analysis is “a malleable one tied to the facts of each case,” and 14 “district courts are vested with ‘broad latitude’ to ‘decide how to test an expert’s 15 reliability’ and ‘whether or not an expert’s relevant testimony is reliable.’” Murray v. S. 16 Route Mar. SA, 870 F.3d 915, 922-23 (9th Cir. 2017) (quoting Kumho Tire, 526 U.S. at 17 13 Rule 702 provides: 18 19 20 21 22 A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case. Fed. R. Evid. 702. ORDER - 23 1 152-53). Although Daubert, 509 U.S. at 592-94, identifies several factors that may be 2 used for evaluating the reliability of an expert—whether the scientific theory or technique 3 has been tested, peer reviewed, identified as having a particular rate of error, and 4 generally accepted in the scientific community—district courts are not required to 5 consider all (or even any) of these factors, nor are they required to hold a “Daubert 6 hearing.” Barabin, 740 F.3d at 463-64. 7 a. Dr. Becker 8 Hyatt challenges Dr. Becker’s expert testimony as lacking relevance. (See MTE at 9 8-9.) Hyatt argues that “Dr. Becker’s report and opinions relate to [Ms. Lister’s] possible 10 loss of earnings claim.” (Id. at 8 (citing 10/29/19 Skinner Decl. ¶ 4, Ex. 3 at 34-35).) 11 Hyatt asserts that Ms. Lister “does not have a viable loss of earnings claim” and so Dr. 12 Becker’s opinions are irrelevant. (Id. at 9.) Ms. Lister concedes that she is not asserting 13 a loss of earnings claim but contends that Dr. Becker’s opinion testimony is relevant to 14 her “physical limitations” and how those limitations “affect her activities of daily living.” 15 (MTE Resp. at 12.) The court agrees that Dr. Becker’s opinions concerning Ms. Lister’s 16 physical limitations are relevant to Ms. Lister’s general damages claim. In reply, Hyatt 17 argues that “Dr. Becker’s report . . . does not contain opinions as to how [Ms. Lister’s] 18 limitations impact her quality of life.” (Def. Reply MTE at 5.) The court disagrees. Dr. 19 Becker’s report consists of the results of his testing of Ms. Lister’s physical abilities and 20 limitations. (See 10/29/19 Skinner Decl. ¶ 4, Ex. 3.) The report also contains his 21 opinions concerning her abilities and limitations based on those test results. (See, e.g., id. 22 at 35-36 (detailing Dr. Becker’s “[c]onclusions” and “[r]ecommendations”).) Thus, the ORDER - 24 1 court denies Hyatt’s motion to exclude Dr. Becker’s expert testimony based on relevancy. 2 The court, however, will limit Dr. Becker’s testimony to those opinions contained in his 3 report. 4 5 b. Ms. Gill Hyatt challenges Ms. Gill’s expert testimony on the ground that it is not reliable. 6 (See Def. MTE at 9-12.) Ms. Gill is a human factors expert. (10/29/19 Skinner Decl. ¶ 7, 7 Ex. 6 (“Gill Decl.”) ¶ 2.) She testifies that she has “worked as a research associate, 8 human factors engineering associate and senior engineer on several hundred legal cases 9 as a [h]uman [f]actors expert.” (Id.) She is Board Certified in Professional Ergonomics 10 and as a Safety Professional. (Id.) She is also a certified XL Tribometrist (meaning she 11 is certified to measure slip resistance of a walking surface) and a certified Project 12 Management Professional. (Id.) In her expert report, Ms. Gill states that she is “quite 13 familiar with the risk management practices of a wide variety of retailers, commercial 14 enterprises, fast food restaurants, property owners, hospitality enterprises, and the like.” 15 (Id. ¶ 5, Ex. 4 at 40.) Despite her educational qualifications and extensive experience, 16 Hyatt argues that Ms. Gill is not qualified “to opine on the adequacy of the janitorial and 17 housekeeping practices of a hotel, including the frequency at which a hotel inspects 18 and/or cleans its lobby restrooms near midnight on a Thursday evening.” (MTE at 9.) 19 The court, however, is convinced that Ms. Gill is qualified to testify as an expert in these 20 areas. The fact that her experience, including “hospitality enterprises,” may be broader 21 than merely encompassing hotels, does not disqualify her. The depth of her experience 22 specifically in the hotel industry may go to the weight of testimony and may be an area ORDER - 25 1 on which Hyatt will want to cross-examine her, but she is nevertheless qualified to testify 2 as to the adequacy of the janitorial and housekeeping practices at issue here. See 3 Primiano, 598 F.3d at 564 (“Shaky but admissible evidence is to be attacked by cross 4 examination, contrary evidence, and attention to the burden of proof, not exclusion.”) 5 (citing Daubert, 509 U.S. at 596). 6 Hyatt also argues that the court should exclude Ms. Gill’s opinions concerning 7 Hyatt’s risk management program and how it compares to the “Safety by Design” 8 framework. (See MTE at 10-11.) Hyatt argues that Ms. Gill does not explain why the 9 “Safety by Design” framework applies to the hotel industry or Hyatt in particular. (Id. at 10 10.) Hyatt also complains that her “approach is one size fits all.” (Id. at 10.) However, 11 Ms. Gill plainly states that the “Safety by Design” approach is part of a three-level 12 hierarchical process that safety and human factors professionals use when creating a plan 13 to control a known hazard—such as a slip hazard. (10/29/19 Skinner Decl. ¶ 5, Ex. 4 at 14 40.) The issues that Hyatt raises—whether “Safety by Design” is the appropriate 15 framework for the hotel industry in general or Hyatt in particular—go to the weight of 16 Ms. Gill’s testimony and are possible areas for cross-examination, but are not sufficient 17 to warrant exclusion of her testimony. See Primiano, 598 F.3d at 564. 18 Next, Hyatt complains that Ms. Gill’s first opinion that the wet flooring was a 19 “functional hidden hazard” is not reliable because she did not inspect the scene of the 20 accident and did not perform coefficient of friction testing at the scene. (See MTE at 11.) 21 As explained in her report, Ms. Gill bases her opinion on her review of the surveillance 22 video of the incident and Ms. Taggart-Hugo’s deposition testimony. Although the facts ORDER - 26 1 that she did not visit the accident scene or perform on-site testing may be appropriate 2 areas of inquiry on cross-examination, these facts do not warrant exclusion of Ms. Gill’s 3 testimony. See Primiano, 598 F.3d at 564. 4 Finally, Hyatt argues that the court should exclude Ms. Gill’s opinion that “[b]ased 5 on the information available to date, Ms. Lister’s actions and/or inactions were consistent 6 with foreseeable human behavior.” (Def. MTE at 11 (citing 10/29/19 Skinner Decl. ¶ 5, 7 Ex. 4 at 33); see also id. at 42 (“While it may have been ‘physically possible’ for Ms. 8 Lister to have detected the unexpected contaminant that induced her slip and fall, the only 9 relevant question in safety is whether a person could reasonably and foreseeably fail to 10 have detected it, and not whether the unexpected contaminant was visible if a person was 11 specifically looking for such an unexpected hazardous condition.”).) Hyatt also seeks to 12 exclude Ms. Lister’s testimony “to the extent” she opines that Ms. Lister bears no fault 13 for the accident. (Id. at 11-12.) In the summary of her report, Ms. Gill states: 14 15 16 17 18 19 In short, Ms. Lister did not commit any errors of omission (i.e., failing to do something a reasonable person would have done) or errors of commission (i.e., doing something a reasonable person would not have done.) To fault Ms. Lister for her slip and fall is to falsely attribute the failure mode (i.e., incorrectly identify the underlying root cause which results in inappropriate corrective action and a continuation of the hazard); this is contrary to basic safety and risk management principles. 10/29/19 Skinner Decl. ¶ 5, Ex. 4 at 41-42.) Expert opinions are not objectionable merely because they embrace an ultimate 20 issue. Fed. R. Evid 704(a). That said, expert witnesses cannot offer opinions as to legal 21 conclusions, i.e., opinions on ultimate issues of law. Hangarter v. Provident Life & 22 Accident Ins. Co., 373 F.3d 998, 1016 (9th Cir. 2004). Indeed, “evidence that merely ORDER - 27 1 tells the jury what result to reach is not sufficiently helpful to the trier of fact to be 2 admissible.” Nationwide Transport Fin. v. Cass Info. Sys., Inc., 523 F.3d 1051, 1060 (9th 3 Cir. 2008). Ms. Gill may not opine that Ms. Lister was not at fault for the accident. After 4 all, who bears fault for the accident at issue and in what proportion is the ultimate issue of 5 law in this case. Nevertheless, as a human factors expert, Ms. Gill may testify to the 6 foreseeability of Ms. Lister’s behavior. Such expert testimony does not address an 7 ultimate issue of law as foreseeability is generally an issue of fact. See Davis v. 8 Progressive Cas. Ins. Co., 220 F. App’x 708, 710-11 (9th Cir. Feb. 5, 2007) (holding that 9 the district court did not err by admitting expert testimony concerning the reasonableness 10 of an insurer’s claims-handling procedures because the reasonableness of such 11 procedures is generally an issue of fact); King v. GEICO Indem. Co., 712 F. App’x 649, 12 651 (9th Cir. Nov. 13, 2007) (same); see also Pearson v. Reynolds Sch. Dist. No. 7, 998 13 F. Supp. 2d 1004, 1029 (D. Or. 2014) (“The question of foreseeability is generally an 14 issue of fact . . . .”). Consistent with the foregoing analysis, the court grants in part and 15 denies in part Hyatt’s motion to exclude Ms. Gill’s expert opinions. 16 5. Summary 17 The court grants in part and denies in part Hyatt’s motion to exclude expert 18 testimony. The court denies Hyatt’s motion to exclude Ms. Lister’s expert witnesses on 19 the ground that Ms. Lister failed to timely and fully comply with the disclosure 20 requirements of Rule 26(a)(2)(B)(i)-(vi). The court grants in part and denies in part 21 Hyatt’s motion to exclude Ms. Lister’s treating medical providers based on Ms. Lister’s 22 failure to comply with the strictures of Rule 26(a)(2)(C). Ms. Lister’s treating medical ORDER - 28 1 providers may testify as percipient witnesses concerning their diagnosis and treatment of 2 Ms. Lister and any opinions they formed during their course of treatment of her. The 3 court also grants in part and denies in part Hyatt’s motion to exclude rebuttal expert 4 testimony of Dr. Hwang. Like Ms. Lister’s other treating medical providers, Dr. Hwang 5 may testify as a percipient witness concerning his diagnosis and treatment of Ms. Lister 6 and any opinions he formed during his course of treatment of her. Finally, the court 7 denies Hyatt’s motion to exclude the testimony of Dr. Becker as lacking in relevance and 8 grants in part and denies in part Hyatt’s motion to exclude Ms. Gill’s testimony as 9 lacking in reliability. Although Hyatt raises issues that may be appropriate to explore on 10 cross-examination of Ms. Gill, Hyatt’s objections do not render her testimony unreliable. 11 Finally, although Ms. Gill may testify as to whether Ms. Lister’s actions were consistent 12 with foreseeable human behavior, she may not opine as to one of the ultimate issues of 13 law in this case—whether Ms. Lister was at fault in the accident. 14 B. 15 The Parties’ Motions for Summary Judgment The court now turns to the remaining motions for summary judgment. The court 16 will first set forth the proper standard for the consideration of the parties’ various 17 summary judgment motions. Next, the court will address the remainder of Ms. Lister’s 18 motion for partial summary judgment concerning Hyatt’s fifth, seventh, ninth, and 19 twelfth affirmative defenses. (See 1st Plf. PSJM; Def. Supp. Resp. PSJ; Plf. Supp. Reply 20 PSJ.) Lastly, the court will consider Ms. Lister’s motion for partial summary judgment 21 declaring her to be an invitee on Hyatt’s property at the time of the accident (see 2d Plf. 22 PSJM; 2d Def. Resp. PSJ; 2d Plf. Reply PSJ (Dkt. # 52)), as well as Hyatt’s motion for ORDER - 29 1 summary judgment declaring Ms. Lister to be a licensee on its property at the time of the 2 accident and that it did not breach any duty that it owed to her (see Def. MSJ; Plf. Resp. 3 SJ; Def. Reply SJ (Dkt. # 53).) 4 1. Summary Judgment Standard 5 Summary judgment is proper when the pleadings, discovery, and other materials 6 on file, including any affidavits or declarations, show that “there is no genuine issue as to 7 any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. 8 Civ. P. 56(a); see also Miranda v. City of Cornelius, 429 F.3d 858, 860 n.1 (9th Cir. 9 2005). To satisfy its burden at summary judgment, a moving party with the burden of 10 persuasion “must establish beyond controversy every essential element of its . . . claim.” 11 S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003) (internal 12 quotation marks and citation omitted). By contrast, a moving party without the burden of 13 persuasion “must either produce evidence negating an essential element of the 14 nonmoving party’s claim or defense or show that the nonmoving party does not have 15 enough evidence of an essential element to carry its ultimate burden of persuasion at 16 trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th 17 Cir. 2000) (citing High Tech Gays v. Def. Indus. Sec. Clearance Office, 895 F.2d 563, 18 574 (9th Cir. 1990)). “If the party moving for summary judgment meets its initial burden 19 of identifying for the court the portions of the materials on file that it believes 20 demonstrate the absence of any genuine issue of material fact, the nonmoving party may 21 not rely on the mere allegations in the pleadings in order to preclude summary judgment[, 22 but instead] must set forth, by affidavit or as otherwise provided in Rule 56, specific facts ORDER - 30 1 showing that there is a genuine issue for trial.” T.W. Elec. Serv., Inc., 809 F.2d at 630 2 (internal citations and quotation marks omitted) (citing, among other cases, Celotex Corp. 3 v. Catrett, 477 U.S. 317, 106 (1986)). 4 2. Ms. Lister’s Motion for Partial Summary Judgment on Hyatt’s Affirmative Defenses 5 On October 15, 2019, the court entered an order denying in part and deferring in 6 part Ms. Lister’s motion for partial summary judgment on several of Hyatt’s affirmative 7 defenses. (See 10/15/19 Order.) The court denied a portion of Ms. Lister’s motion, but 8 pursuant to Federal Rule of Civil Procedure 56(d), deferred ruling on several of Hyatt’s 9 affirmative defenses, including (1) failure to mitigate damages (fifth), (2) offset 10 (seventh), (3) assumption of risk (ninth), and (4) future economic damages (twelfth). (Id. 11 at 10-15, 19.) Following discovery, Hyatt filed a supplemental response to Ms. Lister’s 12 motion addressing its fifth, seventh, ninth, and twelfth affirmative defenses. (See 13 generally Def. Supp. Resp. PSJ.) The court now considers the remainder of Ms. Lister’s 14 motion for partial summary judgment on Hyatt’s affirmative defenses. 15 a. Hyatt’s Fifth Affirmative Defense – Failure to Mitigate Damages 16 Ms. Lister moves for partial summary judgment on Hyatt’s fifth affirmative 17 defense of failure to mitigate damages. (1st Plf. PSJM at 8-9.) The doctrine of 18 mitigation of damages “prevents recovery for those damages the injured party could have 19 avoided by reasonable efforts taken after the wrong was committed.” Pub. Util. Dist. No. 20 2 of Pac. Cty. v. Comcast of Wash. IV, Inc., 336 P.3d 65, 76 (Wash. Ct. App. 2014) 21 (quoting Bernsen v. Big Bend Elec. Coop., Inc., 842 P.2d 1047, 1051 (Wash. Ct. App. 22 ORDER - 31 1 1993)). “The party whose wrongful conduct caused the damages . . . has the burden of 2 proving the failure to mitigate.” Cobb v. Snohomish Cty., 935 P.2d 1384, 1389 (Wash. 3 Ct. App. 1997). In cases involving injuries, the defendant not only must establish that the 4 injured party failed to use reasonable care to mitigate damages, but also must show— 5 through expert testimony—that the failure to mitigate aggravated the party’s injury or 6 otherwise increased the damage suffered. See Fox v. Evans, 111 P.3d 267, 270 (Wash. 7 Ct. App. 2005) (“To support a mitigation instruction, expert testimony must establish that 8 the alternative treatment would more likely than not improve or cure the plaintiff’s 9 condition.”); Hawkins v. Marshall, 962 P.2d 834, 838-39 (Wash. Ct. App. 1998) (finding 10 no evidence that plaintiff’s failure to follow her doctor’s advice aggravated her conditions 11 or delayed her recovery). 12 Hyatt argues that the court should deny Ms. Lister’s motion because “[t]here were 13 several treatment options that [Ms. Lister] either declined or unreasonably delayed in 14 pursuing.” (2d Def. Resp. PSJ at 4.) Specifically, Hyatt argues that Ms. Lister failed to 15 mitigate her damages from (1) gait and instability issues she alleges stem from the 16 surgical repair of her hip after her slip and fall, and (2) a torn rotator cuff that occurred 17 when she fell allegedly due to her gait and instability issues. (Id. at 4-5.) 18 First, although Hyatt asserts that Ms. Lister “has not sought medical treatment for 19 the gait issues” (id. at 5), she testifies that she has consulted both Dr. Becker and Dr. 20 Pritchett regarding this issue (see Lister Dep. at 78:3-5 (“Q: . . . Who have you consulted 21 with regarding the limp? A: Dr. Becker and Dr. Pritchett.”)). Although these doctors 22 analyzed her gait, they did not provide Ms. Lister with treatment recommendations. (Id. ORDER - 32 1 at 78:6-9; 87:3-6.) None of Ms. Lister’s treating providers have conducted a gait analysis 2 (id. at 87:3-11), but she testifies that she intends to see a medical provider at the 3 University of Washington Medical Center regarding this issue (id. at 78:10-16, 4 86:20-87:2). 5 Second, Hyatt argues that Ms. Lister has not independently considered a variety of 6 treatment options or assistive devices for her gait issues. (2d Def. Resp. PSJ at 5.) For 7 example, Hyatt argues that Ms. Lister “has not sought out recommendations regarding 8 appropriate shoes” (id.), but in fact her testimony indicates that none of her medical 9 providers have made any such recommendations and she has not independently sought 10 such advice (see Lister Dep. at 87:12-23). Ms. Lister acknowledges that two of her 11 medical experts recently recommended that she start using a walking stick, but she has 12 not yet addressed the use of such an assistive device with her treating providers. (Id. at 13 81:14-24.) 14 Third, Hyatt argues that Ms. Lister failed to mitigate her damages concerning her 15 torn rotator cuff because although she engaged in physical therapy, her shoulder has not 16 returned to its baseline, and she has not sought additional treatment or surgery. (2d Def. 17 Resp. PSJ at 6.) Ms. Lister, however, testifies that, although she has not yet done so, she 18 intends to seek additional guidance about treatment options for her shoulder. (Lister Dep. 19 at 81:25-84:14.) 20 The court finds Hawkins, 962 P.2d 834, instructive. In Hawkins, a passenger who 21 was injured in an automobile accident sued the motorist who operated the vehicle. Id. at 22 835. The passenger’s doctor prescribed a YMCA strengthening program, which the ORDER - 33 1 passenger did not attend. Id. The motorist argued that the trial court erred by failing to 2 instruct the jury on the affirmative defense of failure to mitigate damages. Id. at 838. In 3 ruling against the motorist, the court of appeals stated that the instruction should be used 4 “when (1) there is evidence creating an issue of fact as to the injured person’s failure to 5 exercise ordinary care in receiving or submitting to medical treatment, and (2) the 6 evidence permits a segregation of the damages resulting from that failure to exercise 7 ordinary care.” Id. (internal quotation marks omitted). Although the motorist presented 8 evidence that the passenger failed to follow her doctor’s advice, the motorist did not 9 present testimony or other evidence that the motorist’s failure aggravated her condition or 10 delayed her recovery. Id. at 838-39. Accordingly, the court held that the trial court did 11 not err in refusing to give a mitigation instruction. Id. at 839. 12 None of the testimony Hyatt presents in its supplemental response establishes that 13 Ms. Lister failed to comply with any medical treatment or recommendations. (See 2d 14 Def. Resp. PSJ at 4-7.) But even if this evidence could be so construed in the light most 15 favorable to Hyatt, Hyatt fails to provide any expert medical testimony that Ms. Lister’s 16 conduct or omissions concerning her treatment “aggravated her conditions or delayed 17 recovery.” See Hawkins, 962 P.2d at 839; see also Fox, 111 P.3d at 270 (“To support a 18 mitigation instruction, expert testimony must establish that the alternative treatment 19 would more likely than not improve or cure the plaintiff’s condition.”). To the contrary, 20 Hyatt’s expert, Dr. Theresa L. McFarland, opines that all of the injuries Ms. Lister 21 sustained from her June 15, 2017, fall are “fully healed.” (10/22/19 Skinner Decl. (Dkt. 22 # 37) ¶ 4, Ex. 3 (attaching copy of McFarland Report) at 9) (“For the injuries or ORDER - 34 1 conditions [Ms. Lister] sustained as a result of the June 15, 2017, fall, have those injuries 2 resolved? Yes. Her left hip fracture is fully healed.”) (bolding and italics omitted).) 3 Accordingly, the court grants Ms. Lister’s motion for summary judgment on Hyatt’s fifth 4 affirmative defense for failure to mitigate damages. 5 b. Hyatt’s Ninth Affirmative Defense – Assumption of Risk 6 Ms. Lister seeks summary judgment on Hyatt’s ninth affirmative defense of 7 assumption of risk. (1st Plf. PSJM at 12-15.) In Washington, there are “four taxonomies 8 of the assumption of risk doctrine: (1) express, (2) implied primary, (3) implied 9 unreasonable, and (4) implied reasonable.” Pelham v. Let’s Go Tubing, Inc., 398 P.3d 10 1205, 1212 (Wash. Ct. App. 2017) (citing Gregoire v. City of Oak Harbor, 244 P.3d 924, 11 928 (Wash. 2010)). The first two categories act as a complete bar to a plaintiff’s 12 recovery. Id. In its initial response to Ms. Lister’s motion, Hyatt narrowed its 13 assumption of risk affirmative defense to “implied primary” assumption of risk. 14 (Def. 14 Resp. PSJ (Dkt. # 24) at 12.) Implied primary assumption of risk arises when a plaintiff 15 assumes a danger that is inherent in and necessary to the activity. Tincani v. Inland 16 14 17 18 19 20 21 22 In its supplemental response to Ms. Lister’s motion, Hyatt argues that even if the court rules against it with respect to implied primary assumption of risk, its assumption of risk affirmative defense “should still stand” because the third and fourth categories of assumption of risk are considered forms of comparative fault. (Def. Supp. Resp. PSJ at 8.) Hyatt’s statement is correct insofar as it goes. However, the court will not instruct the jury separately on either the third or fourth categories of assumption of risk. These categories “retain no independent significance from contributory negligence after the adoption of comparative negligence.” Scott By & Through Scott v. Pac. W. Mountain Resort, 834 P.2d 6, 13 (Wash. 1992). “This view is reflected in the recommendation of the Washington Pattern Jury Instruction Committee that no instruction be given on “Assumption of Risk—Implied Unreasonable” or “Assumption of Risk— Implied Reasonable.” Roth v. BASF Corp., No. C07-106MJP, 2008 WL 2148803, at *1 (W.D. Wash. May 21, 2008); see also 6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 13.01 (7th Ed. July 2019); 6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 13.02 (7th ed. July 2019). ORDER - 35 1 Empire Zoological Soc’y, 875 P.2d 621, 633 (Wash. 1994). Hyatt argues that Ms. Lister 2 assumed the risk of walking through vomit and slipping as she approached the restroom 3 near its lobby. (Def. Supp. Resp. PSJ at 7-8 (“She assumed the risk of walking through 4 an area with vomit on the floor.”).) 5 In Tincani, a group of students visited the zoo on a school field trip. Id. at 623. 6 One of the students fell while making his way down a rock outcropping, suffering serious 7 injuries. Id. at 623-24. The zoo appealed an adverse jury verdict and argued that the 8 boy’s conduct constituted implied primary assumption of risk that barred his recovery. 9 Id. at 624. The Washington Supreme Court ruled as a matter of law that the boy’s 10 conduct did not constitute implied primary assumption of risk because “[t]he risk of 11 serious injury while visiting the zoo should not be a risk inherent in and necessary to such 12 an activity.” Id. at 634. 13 Similarly, in Scott, a 12-year-old boy sustained serious head injuries while skiing 14 at a commercial resort. 834 P.2d at 8. While practicing on a racing course, the boy 15 missed a gate, left the course, and crashed into an unused tow-rope shack. Id. The boy’s 16 parents sued the ski resort alleging that the race course was negligently placed too close 17 to the unfenced tow-rope shack. Id. The Washington Supreme Court reversed summary 18 judgment in favor of the defendants and concluded as a matter of law that while the boy 19 assumed the risks inherent in skiing, he did not assume the risk of the alleged negligence 20 of the operator in failing to provide reasonably safe facilities. Id. at 16. 21 22 Here too, the court concludes as a matter of law that just as the risk of serious injury while visiting the zoo is not inherent in and necessary to that activity, Tincani, 875 ORDER - 36 1 P.2d at 634, neither is the risk of serious injury while walking to the restroom in a hotel 2 lobby inherent in and necessary to that activity. Further, like the boy in Scott, who did 3 not assume the risk of the resort operator’s alleged negligence in failing to provide a 4 reasonably safe ski facility, 834 P.2d at 16, neither did Ms. Lister assume the risk of 5 Hyatt’s alleged negligence in failing to provide a reasonably safe facility in its hotel 6 lobby. Accordingly, the court grants Ms. Lister’s motion for summary judgment on 7 Hyatt’s ninth affirmative defense of implied primary assumption of risk. 8 c. Hyatt’s Seventh Affirmative Defense – Offset 9 Hyatt asserts that it is entitled to an “offset” on any award of damages for any 10 payment Ms. Lister receives from any other party, nonparty, or entity at fault. (Am. 11 Answer (Dkt. # 11) at 5.) Ms. Lister moves for summary judgment on this affirmative 12 defense. (1st Plf. MPSJ at 15.) Ms. Lister argues that Hyatt has provided no evidence 13 that it paid any of Ms. Lister’s expenses. (Plf. Supp. Reply PSJ at 2.) Further, Ms. Lister 14 argues that the affirmative defense of offset does not apply to payments made by a 15 third-party toward any portion of Ms. Lister’s claimed damages. (Id.) 16 Indeed, the collateral source rule bars a defendant from reducing its liability by the 17 amount of recovery a plaintiff receives from third parties and sources collateral to the 18 defendant. See Voight v. HAL Nederland, N.V., No. C17-1360MJP, 2018 WL 4583903, 19 at *2 (W.D. Wash. Sept. 25, 2018). Under the collateral source rule, “benefits received 20 by the plaintiff from a source collateral to the defendant may not be used to reduce that 21 defendant's liability for damages.” McLean v. Runyon, 222 F.3d 1150, 1155-56 (9th Cir. 22 2000) (quoting 1 Dan B. Dobbs, Law of Remedies, § 3.8(1) (2d ed. 1993)); see also ORDER - 37 1 Ishikawa v. Delta Airlines, Inc., 343 F.3d 1129, 1134 (9th Cir. 2003) (“Under the 2 collateral source rule, the tortfeasor is not entitled to be relieved of the consequences of 3 its tort by some third party’s compensation to the victim.”). “The rule ‘does not 4 differentiate between the nature of the benefits, so long as they did not come from the 5 defendant or a person acting for him.’” Solis-Diaz v. Las Vegas Metro. Police Dep’t, 6 2017 WL 374908, at *2 (D. Nev. Jan. 25, 2017) (quoting Restatement (Second) of Torts, 7 § 920A cmt. b) (Am. Law Inst. 1979)). 8 Nevertheless, even if Hyatt could offset such payments, Hyatt provides no 9 evidence that it or any other entity or person made any payments to Ms. Lister for her 10 alleged damages. (See Def. Supp. Resp. PSJ at 9 (“[Ms. Lister] has not identified any 11 third-party who has paid for her claimed expenses or damages.”).) Accordingly, the court 12 grants summary judgment to Ms. Lister on Hyatt’s seventh affirmative defense of offset. 13 14 d. Hyatt’s Twelfth Affirmative Defense – Future Economic Damages In its twelfth affirmative defense, Hyatt states that if an award for future economic 15 damages meets the statutory threshold amount, it intends to invoke the provisions of 16 RCW 4.56.260. (Am. Answer at 6.) Indeed, if a defendant fails to provide a plaintiff 17 with sufficient notice that the defendant intends to rely on the periodic payment 18 protections of RCW 4.56.260, the defendant may lose those protections. See Esparza v. 19 Skyreach Equip., Inc., 15 P.3d 188, 202 (Wash. Ct. App. 2000). However, as both parties 20 acknowledge, Ms. Lister is not claiming any future economic damages in this case. (Plf. 21 Supp. Reply PSJ at 4 (“[Ms. Lister] is not claiming any future economic damages.”); Def. 22 Supp. Resp. PSJ at 9 (“[Ms. Lister] does not have any viable claims for future economic ORDER - 38 1 damages. . . .”).) Because future economic damages are not at issue in this case, the court 2 grants Ms. Lister’s motion for summary judgment on this affirmative defense. 3 4 e. Summary The court grants summary judgment in favor of Ms. Lister on the following 5 affirmative defenses: (1) failure to mitigate damages (fifth); (2) implied primary 6 assumption of risk (ninth); (3) offset (seventh); and (4) future economic damages 7 (twelfth). As stated in its October 15, 2019, order, the court denies Ms. Lister’s motion 8 for summary judgment on Hyatt’s other affirmative defenses. (See generally 10/15/19 9 Order.) 10 6. Ms. Lister’s Motion for Partial Summary Judgment Declaring Her to be an Invitee on Hyatt’s Property and Hyatt’s Motion for Summary Judgment 11 Ms. Lister moves for partial summary judgment asking the court to find that she 12 was an invitee at the Hyatt on the night of her slip and fall. (See generally 2d Plf. PSJM.) 13 Hyatt, on the other hand, asks the court to find that Ms. Lister was a mere licensee on its 14 property at the time of the accident, and on this basis, to grant summary judgment on Ms. 15 Lister’s claims in Hyatt’s favor. (See generally Def. MSJ.) The distinction is critical 16 because, in Washington, “[t]he legal duty owed by a landowner to a person entering the 17 [landowner’s] premises depends on whether the entrant falls under the common law 18 category of trespasser, licensee, or invitee.” Iwai v. State, 915 P.2d 1089, 1092 (Wash. 19 1996) (citing Younce v. Ferguson, 724 P.2d 991, 993 (Wash. 1986)). The difference 20 between the duty of care owed to licensees and invitees is that, with respect to licensees, 21 a landowner or occupier has no duty to “prepare a safe place” or “affirmatively seek out 22 ORDER - 39 1 and discover hidden dangers.” Tincani, 875 P.2d at 628 (quoting Memel v. Reimer, 538 2 P.2d 517, 519 (Wash. 1975)). Further, with respect to a known dangerous condition, the 3 landowner or occupier can fulfill its duty to exercise reasonable care either by providing a 4 warning about the condition or by taking of corrective action. Id. In contrast, a 5 landowner or occupier owes an affirmative duty to an invitee to use reasonable care to 6 make the property safe for his or her entry. Id. at 631. This requires a landowner or 7 occupier to inspect for dangerous conditions and to take corrective measures to protect 8 the personal safety of invitees. See id. at 631. As discussed below, the court concludes, 9 as a matter of law, that Ms. Lister was an invitee at the Hyatt on the night of her slip and 10 fall. Accordingly, the court grants Ms. Lister’s motion for partial summary judgment on 11 this issue. Further, because Hyatt’s motion for summary judgment on Ms. Lister’s claims 12 is premised on Ms. Lister’s status as a licensee (see Def. MSJ at 11-14.), the court denies 13 Hyatt’s motion for summary judgment. 14 Under Washington law, an invitee is either a business visitor or a public invitee. 15 Thompson v. Katzer, 936 P.2d 421, 423 (Wash. Ct. App. 1997) (citing McKinnon v. 16 Wash. Fed. Sav. & Loan Ass’n, 414 P.2d 773, 777 (Wash 1966) (adopting Restatement 17 (Second) or Torts § 332(1) (Am. Law Inst. 1965)); Younce, 724 P.2d at 995). “A 18 business visitor is a person who is invited to enter or remain on land for a purpose 19 directly or indirectly connected with business dealings with the possessor of the land.” 20 McKinnon, 414 P.2d at 777 (adopting Restatement (Second) of Torts § 332(3) (Am. Law 21 Inst. 1965)); see also Younce, 724 P.2d at 996. In contrast, “[a] public invitee is a person 22 who is invited to enter and remain on land as a member of the public for a purpose for ORDER - 40 1 which the land is held open to the public.” McKinnon, 414 P.2d at 777 (adopting 2 Restatement (Second) of Torts § 332(2)); Younce, 724 P.2d at 995. When the facts 3 regarding a visitor’s entry onto property are undisputed, the visitor’s legal status is a 4 question of law. Beebe v. Moses, 54 P.3d 188, 189 (Wash. Ct. App. 2002) (citing Ford v. 5 Red Lion Inns, 840 P.2d 198, 200 (Wash. Ct. App. 1992)). 6 Based on the business connection between Hyatt and 13 Coins at the time of Ms. 7 Lister’s fall, the parties spend much of their briefing analyzing whether Ms. Lister was a 8 business visitor who was invited to enter the Hyatt for a purpose indirectly connected to 9 Hyatt’s business. (See 2d Plf. PSJM at 7-9; 2d Def. Resp. PSJ at 4-8; 2d Plf. Reply PSJ 10 at 2-3; Def. Reply MSJ (Dkt. 53) at 3-5.) The court, however, need not decide this issue 11 because the undisputed evidence shows that Ms. Lister was a public invitee. 12 The basis for the court’s decision that Ms. Lister was a public invitee is grounded 13 in the undisputed deposition testimony of Hyatt’s Federal Rule of Civil Procedure 14 30(b)(6) deponent, who testified as follows: 15 16 17 18 19 20 21 Q. So you agree that the Hyatt lobby is open to the public? A. Yes. Q. Is anyone excluded from the lobby other than somebody that you’ve trespassed? A. No. Q. Are you aware that sometimes people use the restrooms at the Hyatt who aren’t actually staying there overnight? A. Yes. Q. Is anyone ever excluded from using the restroom at the Hyatt if they’re not staying there overnight unless they're trespassed? A. No. Q. Has the Hyatt ever -- have you ever prohibited anybody from using the restrooms in the lobby except for people who have been trespassed? A. No, to the best of my knowledge. 22 ORDER - 41 1 2 3 4 Q. Are there any signs anywhere on the premises that indicate that only guests of the Hyatt are to use the restrooms? A. No. Q. Would you agree that those restrooms are open to the general public? A. Yes. Q. So if I were to walk in there, nobody would tell me I couldn’t use the restroom? A. Correct. 5 (Clark Dep. at 42:4-43:6.) Thus, it is undisputed that Hyatt held both its lobby and the 6 restrooms adjacent to its lobby open to the general public. This admission places Ms. 7 Lister squarely within the definition of a public invitee as “a person who is invited to 8 enter or remain on land as a member of the public for a purpose for which the land is held 9 open to the public.” See McKinnon, 414 P.2d at 777. 10 Nevertheless, Hyatt argues that Ms. Lister was not a “public invitee” because 11 Hyatt did not issue an “invitation” for Ms. Lister to enter. 15 (See Def. Reply MSJ at 6 12 (“Hyatt did not invite diners from 13 Coins into the hotel lobby to use the restroom.”).) 13 Hyatt is correct that an invitation is essential to the status of an invitee. See Restatement 14 (Second) of Torts § 332 cmt. b (“Although invitation does not in itself establish the status 15 of an invitee, it is essential to it.”). 16 Yet, the invitation need not be express; an implied 16 invitation will suffice. See Botka v. Estate of Hoerr, 21 P.3d 723, 727 (Wash. Ct. App. 17 2001) (“An invitee is one who is expressly or impliedly invited on the premises of 18 19 20 21 22 15 Hyatt asserts that it merely “tolerates” the use of its lobby restrooms by visitors to 13 Coins or other establishments in the joint complex. (Def. Reply MSJ at 6-7.) Hyatt cites no evidence to support this assertion, and indeed, it is contrary to the testimony of Hyatt’s Rule 30(b)(6) deponent who admitted that Hyatt holds both its lobby and the adjacent restrooms open to the public. (Dantes Dep. at 42:4-43:6.) 16 See McKinnon, 414 P.2d at 777 (adopting Restatement (Second) of Torts § 332). ORDER - 42 1 another.”) (citing Dotson v. Haddock, 278 P.2d 338, 340 (Wash. 1955)). The 2 Restatement (Second) of Torts counsels that “an invitation is conduct which justifies 3 others in believing that the possessor desires them to enter the land.” Restatement 4 (Second) of Torts § 332 cmt. b. Further, “[a]ny words or conduct of the possessor which 5 lead or encourage the visitor to believe that his [or her] entry is desired may be sufficient 6 for the invitation.” Id. 7 The undisputed evidence in this case is that Hyatt’s lobby and 13 Coins are 8 adjoined by a pair of interior doors, which were wide open on the night of Ms. Lister’s 9 fall. (Lister Dep. at 32:3-16.) The fact that these two establishments—Hyatt and 13 10 Coins—were adjoined by an interior, open, double doorway would lead a reasonable 11 person standing in either establishment to believe that their entry into the other 12 establishment was desired. Thus, the court concludes that Hyatt’s conduct of placing an 13 interior, adjoining, double doorway between itself and 13 Coins, and opening that double 14 doorway between the two establishments, is conduct that would encourage a visitor 15 standing in 13 Coins to believe that his or her entry into Hyatt’s lobby was desired. Thus, 16 the court concludes that, by its conduct, Hyatt issued an implied invitation for guests of 17 13 Coins to enter its lobby. 18 Moreover, the Restatement (Second) also clarifies that “[w]here land is held open 19 to the public, there is an invitation to the public to enter for the purpose for which it is 20 held open.” Restatement (Second) of Torts § 332 cmt. d (Am. Law Inst. 1965). “Any 21 member of the public who enters for that purpose is an invitee.” Id.; see also Wright v. 22 Mt. Mansfield Lift, 96 F. Supp. 786, 790 (D. Vt. 1951) (“Whenever one makes such use ORDER - 43 1 of another’s premises as the owner intends he shall, or such as he is reasonably justified 2 in understanding that the owner intended, this is an implied invitation to enter onto the 3 land of another.”). As noted above, Hyatt expressly admits that it holds both its lobby 4 and the restrooms adjoining its lobby open to the general public. (Clark Dep. at 5 42:4-43:6.) Thus, the court also concludes that there is an implied invitation to the public 6 to enter Hyatt’s lobby for the purpose of using its restrooms. 7 Hyatt also argues that Ms. Lister was a mere licensee because she entered Hyatt’s 8 lobby “solely for her own purpose and benefit of using the restrooms” and “had no 9 business with the Hyatt at the time of her fall.” (Def. Reply MSJ at 7.) However, 10 “[w]here land is held open to the public, it is immaterial that . . . the visitor’s presence is 11 in no way related to business dealings with the possessor, or to any possibility of benefit 12 or advantage, present or prospective, pecuniary or otherwise, to the possessor.” 13 Restatement (Second) of Torts § 332 cmt. d (Am. Law Inst. 1965). Given Hyatt’s 14 admission that it held its lobby and adjacent restrooms are open to the public (see Clark 15 Dep. at 42:4-43:6), it is irrelevant that Ms. Lister entered Hyatt’s lobby for a 16 non-pecuniary purpose. 17 Finally, the court finds persuasive the Restatement (Second)’s fourth illustration of 18 a public invitee. See Restatement (Second) of Torts § 332 cmt. d, illus. 4. The 19 illustration is as follows: “A maintains in his drugstore a free telephone for the use of the 20 public. B enters the store for the sole purpose of using the telephone. B is an invitee.” 21 Id. Similarly, Hyatt maintains in its hotel both its lobby and the adjacent restrooms for 22 ORDER - 44 1 the use of the public. Ms. Lister entered Hyatt’s lobby for the sole purpose of using the 2 restroom. Ms. Lister, therefore, is an invitee. 3 Based on the foregoing analysis, the court concludes as a matter of law that Ms. 4 Lister was a public invitee on Hyatt’s premises when she entered Hyatt’s lobby from 13 5 Coins on June 15, 2017, for the purpose of using Hyatt’s restrooms. Accordingly, the 6 court grants Ms. Lister’s motion for partial summary judgment on this issue. 7 Because the court has determined that Ms. Lister was a public invitee, the court 8 also denies Hyatt’s motion for summary judgment. Hyatt’s motion is premised on Ms. 9 Lister’s status as a licensee at the time of her accident. (See Def. MSJ at 12-14.) As 10 discussed above, the standard of care that Hyatt owed to Ms. Lister, as an invitee, is 11 higher than it would have owed were she merely a licensee. See Iwai, 915 P.2d at 1092. 12 Thus, the court denies Hyatt’s motion because it analyzes Hyatt’s duty to Ms. Lister 13 under a standard of care that is too lenient. 14 IV. 15 CONCLUSION As described in detail above, the court (1) GRANTS in part and DENIES in part 16 Ms. Lister’s motion for summary judgment on certain affirmative defenses (Dkt. # 22); 17 17 (2) GRANTS in part and DENIES in part Hyatt’s motion to exclude expert testimony 18 (Dkt. # 40); (3) GRANTS Ms. Lister’s motion for partial summary judgment on her 19 // 20 // 21 17 22 (See also 10/15/19 Order at 7-10, 16-19 (denying portions of Ms. Lister’s motion for summary judgment on Hyatt’s affirmative defenses).) ORDER - 45 1 status as an invitee (Dkt. # 32); and (4) DENIES Hyatt’s motion for summary judgment 2 (Dkt. # 30). 3 Dated this 9th day of December, 2019. 4 5 A 6 JAMES L. ROBART United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER - 46

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