Expert-aganza ’17: Planning to Fail, Part 2

The failure to plan discussed in this post arose from a slip and fall that occurred as a guest was exiting a concert at a resort property in southern Nevada.  The plaintiff elected to disclose both liability and damages experts.  This post discusses the liability expert, the next post will discuss the damages expert.

The problem for the liability expert was the plaintiff’s attorney had not performed adequate liability discovery before the expert disclosure was due.  This meant that when I deposed the expert, he did not know that he did not know certain information.  This made for a short deposition.

The 12 minute telephonic deposition.

Plaintiff relied on the liability expert to establish the scope of the duty and a breach.  First, as to the resort, the liability expert believed it did not have any employees, of any type, in the area where the fall occurred.

Q. All right. Have you received any information about what [the resort] had for this particular concert?
A. Well, based on my review and materials, [the resort] did not have a present at the concert. They have their regular security people that would have responded, but from what I reviewed, there was nothing to indicate that [the resort] provided security personnel on site within the concert area, within the arena.
Q. So it’s your understanding that [the resort] provided no security for this concert?
A. Well, no security personnel present within the arena at the time of the event.

This would have been a breach of the standard of care.  When the expert wrote the report and was deposed, he did not know that the resort had a security officer specifically posted to the area where the fall occurred.  The liability expert could not have known that because the plaintiff had not yet conducted any discovery about it.  The officer was only deposed much later.  The officer stated during the concert there would be ten to fifteen other security officers, with radios, performing the same tasks as he did.  Those tasks included patrolling his assigned area every 5 to 15 minutes, depending upon what he encountered.  During an hour, he could complete between four and twelve patrols of his area.  The patrol specifically included the floor.

I knew those facts during the liability expert’s deposition, but he couldn’t because plaintiff had not yet obtained them. So I specifically asked if a security officer’s presence in that area would meet the standard of care that he proposed.

Q. To ask a variation on that question, what if [the resort] had a security officer assigned to the section of seating that was close to where [plaintiff] fell? Would that satisfy the standard of care?
A. Well, I think having one in that general vicinity, sure. That’s a standard of care. Doesn’t necessarily have to be a security officer, but housekeeping, almost anyone. It would depend on how they want to staff it.
Q. Okay.
A. At least there would be someone there.

With that, the plaintiff’s expert was now the resort’s expert.

As to the contractor, the liability expert was not provided any information about its staffing during the concert other than its 30(b)(6) testimony.  However, he still gave an opinion about what the standard of care would be.

Q. Separating [the resort] from [the contractor] for a moment, if [the contractor] had two rovers, meaning two employees who roamed the arena looking for things on the floor like [plaintiff] encountered, would that be within the standard of care?
A. Yes, that would certainly be within an acceptable standard of care, and it would be within an acceptable standard of care based on my experiences such as in the Cirque du Soleil theaters.
Q. Based upon the information that you’ve been given thus far, you don’t have evidence indicating that [the contractor] actually did that; is that fair?
A. I think that’s fair. In fact, again, [the 30(b)(6) designee] stated there was no one within the arena.

With that the plaintiff’s liability expert was also now the contractor’s expert. Even had his interpretation of the 30(b)(6) testimony been correct in that the contractor may not have been present within the arena during the concert, the plaintiff fell after the concert had ended, as the arena was emptying.  The 30(b)(6) designee testified at that point four of the contractor’s personnel would be in the arena, near the exits, monitoring for debris.  At the time that plaintiff fell, the contractor met the expert’s standard of care.

The plaintiff’s liability expert was eliminated from the case in a 12 minute, routine deposition because 1) the plaintiff had not conducted the discovery on the points the liability expert was hired to address, and 2) the liability expert misunderstood the timing of the fall.

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