Virginia Lawyers Weekly VA Lawyers Weekly
Where two men filed suit over their interaction with security at Busch Gardens amusement park and planned to testify as experts on security personnel conduct in their own case, they were precluded from doing so because their disclosures were deficient and they lacked experience and training.
Background
Plaintiffs filed a five-count complaint against defendants arising from an incident between plaintiffs and certain security personnel, including defendant Terry Payne, at Busch Gardens amusement park in Williamsburg, Virginia on Sept. 28, 2018. Before the court is defendants’ motion in limine to preclude plaintiffs Jamil Rivera and Jeremiah Jenkins from testifying as their own expert witnesses in the trial of this case.
Analysis
While both plaintiffs have identified the subjects about which they would propose to offer expert opinions, neither have actually disclosed the specific opinions they intend to offer, and, consequently, have failed to proffer any facts or reasons that might serve to support possible opinions.
For instance, both plaintiffs disclosed that they planned to opine about “how reasonable security officers conduct security stops,” but they never actually state how such officers should do so. They purport to opine about “security industry practices and practices and procedures related to security work” but never actually discuss what those practices and procedures are. They apparently have opinions about the conduct of Terry Payne and the Busch Gardens security team, but do not offer any opinions about such conduct.
In short, plaintiffs have not actually offered any opinions that would put defendants on notice as to what specific conduct is alleged to have violated plaintiffs’ rights. Moreover, even if one could discern some type of opinion from these disclosures based on the representation that these plaintiffs would testify about security protocols at Busch Gardens, plaintiffs utterly fail to provide the facts on which such opinions might be based.
Additionally Rivera relies on his three years of experience as a security guard at Busch Gardens a decade ago to establish his qualifications to opine about investigative stops conducted by private security personnel. A high school graduate, any training he had in the field of “security” is minimal and occurred more than a decade ago. He has no present certification and has not worked in the field of security since 2012.
At his deposition he testified he does not remember “the specifics” as to what he was taught at Busch Gardens about “making a stop” and he was not trained on that subject at all when he obtained certification from the state in 2009 to be an unarmed security guard. In light of Rivera’s minimal experience from years ago, he has failed to establish that any opinion he might offer would be based “on a reliable foundation and relevant to the task at hand.”
Although Jenkins has experience in law enforcement as a military police officer, he has failed to establish how that experience in any way relates to “protocols, practices and procedures regarding investigative stops” under the circumstances applicable here. Jenkins’ deposition testimony established that his sole experience is in the field of military installation security and law enforcement.
At no time has Jenkins provided a foundation to establish that such military experience is applicable to a civilian venue like Busch Gardens. Absent evidence that any opinions Jenkins might offer “rest on a reliable foundation,” the court, exercising its “indispensable” role as gatekeeper, cannot permit him to offer expert opinions regarding security protocols at Busch Gardens.
Even if the court were to consider Rivera and Jenkins qualified to offer opinion testimony regarding security “protocols, practices and procedures regarding investigative stops,” the court as gatekeeper would have to exclude any such opinions for two, related reasons. First, as noted in finding plaintiffs’ Rule 26(a)(2)(C) disclosures deficient, neither plaintiff actually offered any relevant opinions. Second, neither plaintiff has ever addressed the specific conduct of defendants or their agents which they allege breached those presently unknown industry standards.
Defendants’ motion in limine granted.
Rivera v. Seaworld Parks and Entertainment LLC, Case No. 4:20-cv-151, May 5, 2022. EDVA at Newport News (Leonard). VLW 022-3-190. 9 pp.
